Pubications > Implications of reference checking candidates on social media websites
It seems commonplace for hiring managers to "google" shortlisted applicants and end up viewing various social media websites in search of information to confirm their opinion of an applicant. The question is whether this is legal in Australia? |
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The whole purpose of the recruitment and selection process is to discriminate between candidates on the basis of valid job related criteria. Prima facie it is not unlawful to discriminate between candidates - in fact it's essential! The real issue is what selection criteria (Criteria) are being used to discriminate and are they related to the job?
Has the recruiter unlawfully discriminated against the candidate?
The general rule provided in section 7 of the Anti-Discrimination Act 1991 (Cth) that a hiring manager must not discriminate in relation to employment, on the basis of :
(a) sex;
(b) relationship status;
(c) pregnancy;
(d) parental status;
(e) breastfeeding;
(f) age;
(g) race;
(h) impairment;
(i) religious belief or religious activity;
(j) political belief or activity;
(k) trade union activity;
(l) lawful sexual activity;
(m) gender identity;
(n) sexuality;
(o) family responsibilities; and
(p) association with, or relation to, a person identified on the basis of any of the above attributes.
Serious consequences can arise if it is proven that a hiring manager discriminated on the basis of any of these attributes.
Job related criteria
Some of the easiest criteria to accurately assess are those that require licensing. Believe it or not, those providing legal advice in Australia must have a practicising certificate! Therefore it would not be unlawful for a hiring manager to search the relevant state Legal Society register to verify if an applicant the requisite certification. Similarly asking an applicant for a position as a Truck Driver to see their license is similarly necessary.
Difficulities arise where their is less of a direct link between the Critera and the job. For example the possession of a degree for a marketing managers role. Experience may be a suitable substitute. Argueably advertisements asking for 'years of experience' fall into this category.
Assessing "cultural fit"
How a person will fit in would seem to be a catch all for "I didn't like them". Emphirically assessing cultural fit is perhaps the most difficult, necessary and challenging task of a hiring manager. Best practice would seem to dictate that at least some attempt to anchor this to some sort of emphirical criteria is required.
Adverse Action under the Fair Work Act
One of the most significant aspects of the ‘adverse action’ provisions are those which prohibit discrimination in employment.
Section 351 of the Act provides that employers are prohibited from taking adverse action against an employee or prospective employee, because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
What is a workplace right?
Section 341 of the Act provides that a person has a ‘workplace right’ and is afforded protection against ‘adverse action’, if he or she is:
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entitled to the benefit of, or has a role or responsibility under a workplace law, instrument or order of an industrial body; |
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able to initiate or participate in a process or proceedings under a workplace law or instrument; |
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able to make a complaint or inquiry to a person or body having capacity under a workplace law to seek compliance with that law or workplace instrument; or |
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an employee who is able to make a complaint in relation to his or her employment. |
Some workplace rights include the right to freedom of association, and the right to be free from unlawful discrimination, undue influence and pressure. Arguably using information gathered on an internal applicants social media profile may give rise to an Adverse Action claim by the employee. For more commentary on this issue click here.
Implications under the Privacy Act?
If hiring managers collect and record information about candidates from their social media profile then argueably this raises obligations under the Privacy Act 1991 (Cth) (Privacy Act). Companies must only collect information that is necessary for their business.
Argueably what movie a candidate saw on the weekend and whether they can drink a carton of beer in one session is not necessary information that should be held and neither are either of those items usually valid job related criteria.
Background checking
Hiring managers can argueably use information on a candidates social media profiles for background checking purposes. It would seem that informing the candidate that this is being done is preferable to performing covert searches. For example this method could be used to confirm statements or assertions made in a Resume. The temptation to use information other than for the purposes of verification should be avoided.
If an employer has a valid reason for reviewing a candidates social media profile where that profile is indicia of valid criteria, then all candidates or all shortlisted candidates profiles should be reviewed and assessed against the same objective criteria. For example if the job involved online marketing and the person did not have a social media profile or 'few friends' or connections then arguably this is not unlawful to discriminate against them on this basis because they may be indicia of their ability to perform this aspect of the job. It would be like a truck driver without a license, without the statutory enforcement.
However to view a candidates profile and make a decision based on a one off piece of information that is not related to their ability to perform the job would, on its face, seem to be discriminatory.
What all this highlights is that all hiring decisions should involve some rigour and at least an attempt by a hiring manager to inject some rigour into what seems to be a very imprecise craft.
Malcolm Burrows B.Bus.,MBA.,LL.B.,GDLP.,MQLS
One of Malcolm's pre-law businesses was a Recruitment Consultancy.
"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances".
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