With the increasing popularity of social networking sites such as Facebook, Myspace and Twitter, many employers may be tempted to search for information on potential job applicants in order to gauge their suitability for the position they are applying for. However, this could have potentially serious legal implications which employers should be aware of.

In legal terms, this kind of research constitutes pre-employment vetting, and can raise both discrimination and data protection issues.

By looking up applicants on social networking sites, an employer could obtain information relating to their sexual orientation or religious beliefs. If this information then plays a part in the decision to employ the applicant, or could be perceived to impact on the decision, the employer may be open to a claim of discrimination.

The Employment Practices Data Protection Code makes it clear that an employer should not “place reliance on information collected from possibly unreliable sources.” How much credence can be placed on the information contained on social networking sites is certainly open for debate.

The Code also states that employers should “only use vetting as a means of obtaining specific information, not as a means of general intelligence gathering.”

Social networking sites can also pose other problems for employers. When employees use sites like Facebook and Twitter, even outside of working hours, there is a danger that they could damage their employer’s reputation or disclose confidential information. There is even a risk that the employer might be vicariously liable for any discriminatory behaviour by one employee towards another.

Employers may be able to take disciplinary action against workers who make defamatory comments about them online, and may be able to bring libel proceedings against an offending employee or take out an injunction to have derogatory content removed.

Any action taken by an employer will have to take into account the employee’s right to freedom of expression, which will arguably cover complaints about their work, provided the complaints are not discriminatory, damaging or libellous.

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