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27th April, 2012

Employers are being warned by the Information Commissioner’s Office (ICO) that it would have “very serious concerns” if they were to ask existing or potential employees for their Facebook login and password details.

This follows reports of employers in the United States of America (US) asking job applicants for their social media details.  The US attorney general has been asked to investigate whether such requests violate federal law in the US.

The ICO has said that this sort of action in the United Kingdom would put employers in breach of the Data Protection Act 1998 since such a request would constitute “excessive” information about an individual.

Facebook also warned that such a request would breach its terms of service.

From an employment law perspective, employees or job applicants may have potential discrimination claims if, for example, by logging on to an individual’s social media account, an employer discovers that the individual has a protected characteristic (as listed in section 5 – 12 of the Equality Act 2010) and treats the individual less favourably than others because of the protected characteristic.

Having a social media policy in place would minimise the risks which social media sites pose not only with discrimination but also with confidentiality, proprietary information and reputation.

Please contact Helen Kidd in the Employment team at [email protected] or on 01244 405555 if you need a social media policy or have any concerns about the effect social media could have on your business.

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