A recent survey has confirmed that 56% of employers review a candidate's social media presence before deciding on whether to offer them the job and 36% have rejected an applicant because of what they have discovered. These statistics clearly show that many employers are looking at social media postings made by future employees but should they be?

Provided the profiles are publicly accessible, there is nothing in law to prevent them from carrying out such checks. That said, the practice can have potential risks for the employer. For example, why have separate anonymised diversity monitoring if you are then going to obtain information about a candidate’s age, ethnic background and possibly also marital status, health, sexual orientation and religion and beliefs, whilst looking into their online profiles?

There is a risk of discrimination claims if an applicant is not selected because of something revealed by their social media profile, such as their racial group or sexual orientation. This may, of course, be difficult for the individual to prove but it should be considered nevertheless. Also, remember that by collating such information, you are effectively processing “personal data” about the candidate so the principles set down by the Data Protection Act 1998 need to be complied with.

There are also practical issues. By way of example, some candidates may not have an online presence at all. Therefore, using it as part of the selection process could be discriminatory on grounds of age or ethnicity. How will you ensure fairness and consistency in your selection process in this situation?

Also, some information may be inaccurate, misleading or incomplete. A social media profile can hang around long after the person has "changed their spots". How relevant is the information to the position that you are hiring for anyway?

Finally, some candidates will think that such probing is an invasion of their private life. Do you risk losing good applicants because of your policy on checking their social media postings?

So employers, the next time you are considering trawling LinkedIn, Facebook and the like to snoop on potential employees, consider the above. The Employment Team here at Goodman Derrick LLP has recently carried out its own survey about social media use in the workplace and we found that 15% of employers always use social media to screen applicants and 49% sometimes do. We are running a free social media breakfast workshop on 22 September 2016 - come along if you can make it to learn more about social media and employment law issues (see http://www.gdlaw.co.uk/site/news/gd-events/goodman-derrick-to-host-employment-law-social-media-workshops for more details and to reserve your place).