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Social media logins requested in interviews: legal comment

Social media logins requested in interviews: legal comment

Ed Goodwyn, partner in the employment team at Pinsent Masons comments:

“Asking an employee for their Facebook logon is not unlawful in itself. If an employee gives the putative employer the login, he has given consent and so there would appear to be no Data Protection Act breach

The right to a private and family life is enshrined in the European Convention on Human Rights (ECHR).  Its hard to see how this would be breached as the employee has the choice of whether to give the employer his log in.

However, if the employer relies on a protected characteristic which is apparent from the Facebook pages (such as that the candidate is a trade union activist, is disabled etc) then that will be unlawful.

Furthermore, once the employment relationship is formed, any further use of Facebook in this way without further permission from the employee would be a breach of the implied duty of trust and confidence. Furthermore treating an employee less favourably for the fact that they refuse permission would also be a breach of the implied term, on the basis that presumably the request is not a reasonable one as the Facebook pages are private to the employee. Whilst employees who lodge comments on blogs including Facebook can be disciplined where those posting are inappropriate, an employer does not have a right to the employees’ log in.

Another issue for employers is protecting their business contacts which may be on business sites like Linked-In particularly where employers have encouraged employees to use Linked-In for business networking.  Cases are being brought against employees to injunct them from using their Linked-In contacts once their employment has ended.

Employers should look to drafting clear policies to deal with both issues to assist them protect their businesses.”


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