Online Checks During Recruitment: What is Really Needed?
30 January 2023
A recent Schools Week article has highlighted some of the challenges that online checks are causing schools and the need for improved guidance. When Keeping Children Safe In Education (KCSIE) was updated to include online checks as part of the recruitment process, I was concerned it would create something of an industry and potentially create additional risks for schools. So, what is needed? The starting point in all of this is what KCSIE says: -
Paragraph 221 states:
‘In addition, as part of the shortlisting process, schools and colleges should consider carrying out an online search as part of their due diligence on the shortlisted candidates. This may help identify any incidents or issues that have happened, and are publicly available online, which the school or college might want to explore with the applicant at interview.’
This is what lawyers call a ‘weak’ provision. It is not a ‘must’ do; it is just a ‘should consider.’ This means that a school should consider doing online checks or decide not to, and there would be compliance with KCSIE. Naturally, some reasons would be needed in respect of any such decision. The provision is also very vague; it just refers to the ‘shortlisting’ process and does not give any details at all about what should be done other than referring to ‘online search.’ Unsurprisingly in the face of a weak provision and vague guidance, a bit of an industry is emerging with some Trusts wanting passwords to social media, searching for five years and spending money on external companies to carry out these searches.
The starting point is thinking about the purpose of the online search. The objective is to identify if there is anything publicly available online, which is a point of concern, a bit like an extra safety net to ensure nothing has slipped through. This is intended to supplement and not replace safer recruitment. For that reason, I recommend that schools carry out online searches.
Once a school has decided to conduct an online search, the next question is, at what stage? The guidance refers to the ‘shortlisting process’ but does refer to interviews. An online search could be carried out at the offer stage, as this is part of the shortlisting. I also think this is safer.
There are two potentially significant issues which can arise with online searches. The first is compliance with data protection law. The second is discrimination. We all know that GDPR requires schools to only process necessary data and limit it to a specific purpose. We then need to think about how it will be stored and retained, who has access to it and so on and what will be done with it. We also know that it is human nature to make assumptions about people. For example, if someone sees a prospective employee caring for elderly parents, will this influence a decision? This issue could be solved by an external person carrying out the search, but it begs the question, how will that person know what constitutes something to explore at the interview? Are they to record everything they have seen and then make a determination as to the reasons why they did or did not recommend that this is explored at the interview? The reality is that this could rapidly become an industry. It should also be noted that the draft guidance referred to social media, and the final guidance talks about what is ‘publicly available.’ It is not necessary or required to go through social media profiles. Conducting an online search as part of the offer stage avoids any problems around potential discrimination issues arising as part of the shortlisting process and is more akin to a reference. Offers could even be conditional on the completion of an online search.
Some may feel that my approach is not sufficiently risk-averse. It comes back to the purpose of this. What schools are seeking to avoid is recruiting someone who may have done something very bad which has not arisen through the standard checks. A quick google search should be sufficient to find this out. If it turns out that an applicant has committed a crime abroad or participated in highly questionable activities, then this should come up, and it can be addressed with them. It would be quite possible (particularly with common names) to spend hours searching and not pick something up. Similarly, it would be quite possible (particularly with common names) to mistakenly attribute something found online to the wrong person, store that information, and then be liable for that mistake.
Safer recruitment has specific requirements (such as the DBS check) with a known and prescribed form. Online checks should be a supplement to that process and should be undertaken in a proportionate and sensible manner. In most costs, this should not take more than a short time with a brief note that someone has undertaken a ‘google’ (or other search engine search) and (in most cases) will record that nothing of note has been found. Anything more than that risks creating an industry out of something that should be straightforward and raises potential liability issues around data protection or discrimination issues.