At the beginning of the year, the government published a consultation document on keeping children safe in education. One of the proposals under consideration was to allow schools and colleges to conduct online searches on shortlisted candidates to "help identify any incidents or issues that have happened, and are publicly available online, which [they] might want to explore with the applicant at interview”.
The outcome of the consultation makes it clear that the government will go ahead with this proposal and it has published new guidance which schools and colleges must follow from Thursday 1 September 2022.
We consider the legal issues schools and colleges need to consider before searching a candidate's social media presence.
Do we have to undertake online searches of candidates?
No. However, the guidance states that you should consider carrying out checks as part of your due diligence. If you decide not to conduct any type of online search, make a note of the reasons for your decision. It's important to act consistently and you should not conduct online searches for some candidates and not for others unless you are confident that you have a good (and, more importantly, a non-discriminatory) reason to treat candidates differently. I can't think of any good reason off hand, so tread carefully if you're thinking of going down that route.
Our view is that you should consider what you can reasonably do with the resources available to you.
Which sites can we review?
We recommend that you adopt a standard approach for all candidates and only review those sites which are in the public sphere and the search covers the same time period. European guidance previously directed that only professional sites should be used in this capacity such as LinkedIn. However, as we are no longer bound by European law you could also extend your search to non-professional platforms such as Instagram, Twitter etc.
One thing to note: the guidance refers to conducting 'internet searches', rather than 'social media searches'. The government has confirmed that it has deliberately removed the words 'social media' which were used in the consultation document, although it doesn't specifically explain why. This may indicate that the DfE only requires schools and colleges to add a candidate's name into a search engine to see if anything untoward comes up, rather than trawling through their entire social media presence (which would take much longer and use up resources that many schools and colleges simply don't have). A representative from the DfE told a delegate at a recent safeguarding conference that searching someone's internet history shouldn't be an onerous task and that the DfE didn't anticipate schools and colleges going through a candidate's social media history.
We hope that the DfE and Ofsted will make it's official view clear before September so that the people undertaking searches are confident that they are approaching this in the correct way.
Can we ask candidates to provide us with their on-line identities?
Yes. But there are a number of issues you need to consider first:
- Candidates may not tell you the truth (particularly if they've got something to hide)
- They may have both professional and personal profiles and may not be willing to give you access to their private ones
- What will you do if a candidate refuses to provide information about their on-line presence?
- How far back will you look?
The guidance doesn't address any of these issues.
If you only intend to conduct a general 'Google type' search, you must search against all names a candidate has disclosed on their application form to ensure that your search encompasses all identities.
What sort of information are we looking for?
You should only be looking for information that suggests that a candidate is unfit to work with children/students rather than general information about their social life or views on certain issues. For example, information about a candidate's political affiliations won't be relevant unless they are involved in extremist groups or share extremist views. Similarly, anything about their sexuality should also be disregarded unless it raises concerns about their fitness for the role.
What if we find something?
If you discover information that is relevant, you should raise this at the interview before making any firm decisions about a candidate's fitness for the role. You should not reject them without giving them an opportunity to explain.
Should we carry out online searches to shortlist candidates?
No. The guidance makes it clear that you should only carry out these sorts of searches once you have shortlisted a candidate.
What data protection and privacy rules do we need to follow?
The first thing to consider from a data protection point of view is whether there is a legal basis permitting the use of the personal data.
With regard to personal data (but not special category data) the lawful basis you can rely on is compliance with a legal obligation. The statutory guidance is issued under Section 175 of the Education Act 2002 (as amended), the Education (Independent School Standards) Regulations 2014, the Non-Maintained Special Schools (England) Regulations 2015 and the Apprenticeships, Skills, Children and Learning Act 2009 (as amended). You need to document this as part of your processing activities.
However, in order to rely on compliance with a legal obligation as your lawful basis, you must limit your search to that permitted within the guidance. Paragraph 220 permits online searching of material that is publicly available. So, you can undertake general online searches using a search engine such as Google. It is also likely to allow you to ask for social media account details and to carry out a search for information that is available to the public. But, it's unlikely to allow you to access private content such as Facebook or Instagram.
A further condition is required where the information you find is special category data e.g. health data, trade union membership, religious beliefs, ethnicity, sex life/sexual orientation etc. The applicable additional condition is likely to be that the school or college is exercising rights/carrying out obligations under employment law as authorised by laws in the UK. As with ordinary personal data the permission to use personal data under this condition is limited to use which meets the guidance.
What should we tell candidates?
In addition to having a documented lawful basis, any use of this data needs to be transparent to candidates. You may, therefore, need to update your job candidate privacy notice (and policy if you have one) to include the fact that such searches will be undertaken in accordance with the KCSIE guidance, provide a lawful basis for this and ensure all candidates are provided with a copy.
How long should we retain this information?
Normal rules relating to retention of personal data and ensuring only proportionate use of personal data will also apply. This means that you should delete the searches once you no longer need the data.
Generally, it is advisable to retain recruitment documents, such as application forms and interview notes, for unsuccessful candidates for at least six months, to reflect the limitation periods in place for employment claims (such as discrimination). Our data protection colleagues think that this is probably too short in the case of these searches and that a longer period may be appropriate. This is because, if any issues arise, you may need to evidence what searches you undertook and demonstrate that you complied with your legal obligations.
You will therefore need to consider how long you are going to keep the search results for KCSIE purposes, explain why you have chosen that retention period and refer to it in your privacy notices. Our data protection experts will help you determine the correct retention period and document your rationale for choosing it.
Are there any other potential employment law risks that we need to consider?
Whilst there are no legal issues specifically in relation to checking social media – it is, after all, information that the user has chosen to share publically – when recruiting you do need to ensure that the information found through online searches are not used to unlawfully discriminate against the candidate.
For example, if a candidate’s social media reveals that they are pregnant, but they have not chosen to share this with you prior to interview, to remove that candidate from the interview shortlist based on the fact that they are pregnant will amount to sex/maternity discrimination. Their pregnancy does not cause any concern around, or prevent them, from working with children and so this information is irrelevant to whether they should be shortlisted. The same applies to information relating to the other protected characteristics, such as sex, age and race.
Who should carry out the searches?
To minimise the risk of bias or discrimination, we suggest that, where possible, the online searches are carried out by someone who is independent of the recruitment process. That person can filter the information and only disclose to the interview panel relevant information around safeguarding, reputation etc.
However, if this is not possible, another option would be to record in writing any findings together with a written explanation as to why they are being used. For example, if a candidate has written something offensive online about a particular race or religion, you may record “X has written [XYZ] on their Twitter account, dated [date]. This clearly expresses views which do not align with our own and, as such, we believe this could damage our reputation and could impact on the candidate's ability to support students of [that particular race/religion]”. If that candidate subsequently alleges that you had discriminated against them in the recruitment process, you will have a contemporaneous record of your decision and reasoning. Of course, if your reasoning is, in fact, discriminatory, your record is going to be used against you. Be particularly careful if you are relying on certain beliefs to reject a candidate - such as someone who holds gender critical views which may, potentially, conflict with your attitude towards the rights of trans people.
This can be a tricky road to navigate, and we recommend that you take legal advice if you're unsure whether rejecting a candidate with certain beliefs that conflict with those of your organisation could result in legal claims.
When does the guidance come into force?
The guidance comes into force on Thursday 1 September and should be followed for all candidates on or after that date.
Our employment law experts, Jenny Arrowsmith (schools) and Helen Dyke (colleges) are here to answer any additional questions you have. They are supported by specialist data-protection lawyer Joanne Bone and public law expert Yogi Amin.
We also support schools and colleges with our fixed-fee annual retainer, or flexible discounted bank of hours service. If you'd like to know more about this, please contact Jenny Arrowsmith.