August

There is currently no legislation in the UK that prohibits employers from considering information contained on applicant's social networking profiles when making a recruitment decision. However this does not mean that employers can conduct searches on social media sites when recruiting without fear of consequences. The danger for employers is that if a decision is subsequently taken not to appoint a candidate in circumstances which included a review of their Facebook (or other social media) page, then this could potentially give rise to allegations of discrimination. Vetting of job applicants via social media also involves processing personal data (when the employer either uses or records the information obtained), so employers must ensure that any vetting is compliant with the Data Protection Act. The ICO's guidance states: vetting should be used to confirm specific points rather than for general intelligence gathering, information should only be sought from sources where it is likely that relevant information will be revealed, and employers must avoid placing reliance on potentially unreliable sources.

The new Disclosure and Barring Service (DBS) has now become operational. Introduced in an attempt to scale back the number of criminal record checks under the previous CRB system, it is clear that there are still some issues to do with the right to privacy to be resolved.Over the last year, a number of legislative and structural changes have been implemented in respect of criminal record checks. Combined with the effects of recent caselaw, these changes will be of great interest to employers and employees working with vulnerable members of society. The Protections of Freedoms Act and the establishment of the DBS introduce changes that aim to strike a balance between protecting the vulnerable and facilitating employment. They do not however, alter the fact that certain legislation requiring criminal record checks has been declared incompatible with the right to privacy under Article 8 of the European Convention on Human Rights (ECHR). The outcome of this appeal and the implementation of the changes to the criminal record checks system should be watched closely by both employers and employees working with the vulnerable.

"Data security expert, PHS Datashred, is calling for the EU to do more to educate British businesses on the financial impact of proposed changes to law. The company said that struggling British firms could be hit with an unexpected 'tidal wave' of cost associated with compliance to new European data laws if they are not fully prepared. PHS Datashred goes on to say that the proposals to change the law relate to the way data is handled and managed and that British companies could suffer significant costs in appointing data controllers to comply. According to a survey of 506 businesses by the Information Commissioner's Office (ICO), approximately 87% of businesses are unable to estimate the costs of the draft proposals to their organisation. The report also found that 40% of companies do not fully understand any of the ten main provisions being proposed and that none of those surveyed could accurately describe all ten provisions. Managing Director of PHS Datashred, Anthony Pearlgood said, ""There is undoubtedly a requirement to bring the regulations into the 21st century but it should not be done before businesses are able to assess how much it will actually cost them."