UPDATE: This note was originally published in July 2022 in advance of Keeping Children Safe in Education 2022 coming into effect. It has subsequently been revised to reference the latest version of the Independent Schools Inspectorate Commentary on the Regulatory Requirements (the “ISI Commentary”) effective September 2022.
The latest version of the statutory guidance Keeping Children Safe in Education (KCSIE) came into effect in September 2022. One of the main changes to safer recruitment practices this year is a new requirement for schools to consider carrying out online searches for shortlisted candidates.
In a non-education setting, employers have been checking the online and social media presence of prospective employees for some time but, for many schools, this may be an entirely new exercise.
KCSIE 2022 states:
“… as part of the shortlisting process, schools and colleges should consider carrying out an online search as part of their due diligence on… 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.” (para 220, KCSIE 2022).On the face of it, this new requirement seems relatively straightforward; however, no further guidance is set out within KCSIE, and schools will undoubtedly have questions about online searches from a practical, legal, and regulatory perspective. This note addresses those key questions.
Are online searches compulsory?
The requirement is expressed as a “should” rather than a “must” (i.e. schools “should consider” carrying out an online search). KCSIE is clear that the use of the term ‘should’ in the statutory guidance means that the advice should be followed unless there is good reason not to. The latest ISI Commentary provides further detail at paragraphs 488-490. This encourages inspectors, when looking at individual employment files, to check whether schools considered carrying out online searches in accordance with KCSIE.
If the searches have not been carried out, schools will need to satisfy inspectors that due consideration as to whether online searches were appropriate has taken place. If the decision has been taken not to undertake online searches, inspectors will consider all the circumstances when deciding whether there was compliance with KCSIE. Our experience is that this is an issue that is coming up regularly in the context of inspections post-September 2022.
In light of this, unless a school has a good reason not to do so, it ought to carry out online searches on shortlisted candidates for the reasons outlined within the updated guidance – i.e., to identify any incidents or issues, related to suitability to work with children, that may need to be raised or clarified at interview. Where a school decides not to carry out an online search, this decision, and the reasons for it should be documented internally.
Why are they needed?
Essentially, this further step forms part of a school’s wider safeguarding due diligence which aims to prevent and/or deter individuals who may be unsuitable to work with children from working in a school environment. Any online searches will be used to identify “… any incidents or issues” that are publicly available online.
The focus of any online search should be “incidents or issues” that may cause concern regarding a candidate’s suitability to work with children. This may include, for example, offensive or inappropriate behaviour or language, drug or alcohol misuse, inappropriate images, discriminatory behaviour, and any other information that may raise concern as to an applicant’s suitability to work with children.
When should the online search be conducted?
The guidance is very clear that online searches should only be carried out as part of the shortlisting process – i.e., on shortlisted applicants; not on all applicants that apply for a position. It is also clear that the searches should be carried out in advance of interview so that any identified issues or incidents can be raised with the applicant during the interview, if felt necessary.
Who should carry out the search?
This is not specified within the guidance. However, to minimise the risk of discrimination and/or unconscious bias (see below), we recommend that, where possible, the search is carried out by a member of staff not directly involved in the decision-making process. Schools may be able to draw upon any internal HR resource to carry out the search, for example.
It is important that the individual carrying out the search understands its purpose and the associated parameters. More on this can be found below.
An alternative may be for schools to use digital onboarding platforms to carry out a search on a shortlisted candidate. Schools seeking to procure these services should ensure they are compliant with data protection law and KCSIE. For instance, the parameters of searches should be clearly defined so that they do not go beyond the requirements of KCSIE. This means only publicly available sources should be searched. Schools will need to review any report provided and decide how to proceed keeping in mind the risks outlined below.
Where should schools look and how far back should they go?
There is currently no clear guidance in this respect, save that schools should look for information that is “publicly available online”. This suggests that the information should be freely available to the public as part of a simple online search – for example, using a web browser, website, or social media platform.
The starting point is likely to be a search of the applicant’s name on a recognised search engine (e.g. Google), followed by a review of the most prominent social media and video networking sites (e.g. Facebook, Instagram, LinkedIn, Twitter, Tik Tok and YouTube).
Where a number of individuals appear in a name search, schools will likely need to combine their name with key words such as the name of their current or previous employer and the city or town in which they are (or have) resided. This may result in multiple searches being carried out particularly for common names. As a rule of thumb, search criteria and the number of searches carried out should be limited to what is necessary to identity the correct individual (if possible) and locate the relevant data (if any). Schools should avoid searches which may be considered excessive in terms of time spent and/or search results and sources reviewed.
It will be important for schools to develop their own approach to online searches, including which sites will be routinely searched and how far back in time they will go in terms of using previous employers as part of the search that are disclosed as part of the application process. Clearly defined parameters will be necessary to ensure a consistent approach is taken.
How should the information be used?
The member of staff carrying out the search, if not involved in the decision-making process, can share any relevant information (related to suitability) with the individuals who will be interviewing. In this way, the decision makers will have only the relevant information that may need to be addressed at interview and will not be exposed to other irrelevant information that may increase the risk of discrimination and/or unconscious bias (see further below).
Search results should be used in the same way as any other information collated as part of the recruitment process – it should be reviewed and, if appropriate (for example, if any incidents or issues come to light), explored with the applicant at interview.
Do the results of online searches need to be recorded on the Single Central Record (SCR)?
The ISI Commentary is clear that online searches do not have to be recorded on the SCR. Schools may, however, choose to include these checks on the SCR in order to have a record of all checks in one place. If this approach is not taken, evidence of consideration of the carrying out of these checks should be sought by inspectors on inspection through the checking of staff files (although see below regarding the retention and storage of information obtained as a result of online checks).
What information should be kept, and how should it be stored? For how long should the information be retained?
Where online searches do not reveal any relevant information, a note of this should be made on the candidate’s file along with the search criteria used, the initials of the staff member carrying out the search, and the date of the searches in order to demonstrate compliance with KCSIE.
It is not necessary to retain any search results in these circumstances. Where relevant information is retrieved, this should also be retained on the candidate’s file along with records of discussions and decisions made with respect to it. Data relating to online search criteria, results of searches and decisions relating to this data should be held securely and confidentially with other data collected during the recruitment process.
It should only be accessible to a limited number of staff as necessary and should only be held for as long as it is needed. The retention period for this data will depend on whether the candidate is ultimately successful and joins the school; it is likely to mirror the retention periods for criminal records data. A school’s data protection policy, recruitment privacy notice and retention schedule (or similar) will likely need to be updated to reflect this.
What are the risks?
Whilst online searches can be a valuable tool; they can also create a degree of risk for employers, particularly from a discrimination and data protection perspective.
Screening candidates online is likely to reveal information that is not strictly relevant to the recruitment process, for example regarding the candidate’s age, gender, ethnicity, sexual orientation, religion, etc, (characteristics which are protected under the Equality Act 2010). Having prior knowledge of this information may increase a school’s vulnerability to accusations of discrimination (conscious or unconscious) in the recruitment process.
Consistency may also be problematic. Generally speaking, recruiters should ensure that all candidates are assessed in the same way. This may be difficult when not all applicants will have an accessible online profile (and they certainly will not have the same online profile) and so they cannot be assessed in the same way. Again, this may increase the likelihood of a candidate challenging recruitment decisions and alleging, for example, that they have been treated less favourably as a result of a protected characteristic.
Data protection law aims to strike a balance between an employer’s need for information, and a candidate’s right to maintain the privacy of their personal data. Under the Data Protection Act 2018 and the UK General Data Protection Regulation (GDPR), employers must give job applicants certain information about how their personal data is collected and used (commonly this is done via a privacy notice).
If online searches are to form part of the recruitment process, a school’s privacy notice will need to make this clear (in the section outlining where personal information comes from); and set out the legal basis for processing the data. In this context, the legal basis might be because it is necessary to enter into a contract; comply with a legal obligation; or for the employer’s legitimate interests – e.g. to select suitable employees, workers, or contractors. If any of the data amounts to ‘special category data’ – e.g. details of race, religion, or sexual orientation, then one of the additional processing conditions needs to be set out too, for example to exercise or perform employment law rights or obligations. This data should not be held for any longer than is necessary.
While online checks can provide an abundance of information about a candidate, schools will need to be cautious about the accuracy of the information. Information may be out of date or incorrect which could result in a school potentially passing over a valuable candidate. Crucially, it may be difficult to confirm a search result as relating to the candidate and not to another individual with, for instance, the same name.
It is also worth remembering that a disappointed applicant can make a subject access request under data protection law to get hold of any documents or records relating to their application which may shed light on why they were unsuccessful. This is likely to result in schools disclosing to requestors online searches carried out and decisions made with respect to search results. Candidates also have other rights under data protection law relating to, for example, the erasure or correction of their data which schools would need to respond to and action if required under data protection law.
It is possible that online searches may reveal details of a candidate’s spent convictions, in which case the requirements of the Rehabilitation of Offenders Act 1974 will need to be considered. Legal advice should be sought in these circumstances.
How to minimise the risks
- Transparency: Inform applicants from the outset that online searches will form part for the recruitment process and outline the reasons for this. The school’s recruitment policy should make this clear.
- Training: Ensure that staff receive appropriate training on the purpose of online searches and their responsibilities from an equality and data protection perspective.
- Record-keeping: Keep records of the information collated during a search and clearly document the reason(s) for not progressing a candidate’s application, where applicable, which you would be prepared to disclose to the candidate if requested.
- Set internal parameters for the searches: To ensure consistency and avoid unnecessary processing of personal data, set parameters in respect of the location of online searches; the information to be searched for (i.e. by the use of keywords) and how far back to search.
- Due diligence for external providers: Carry out checks as part of the procurement process before engaging an external provider to assist with online searches. These should be recorded. A data processor agreement should be put in place. Schools should be confident the chosen provider is acting in the same way that the school would have acted if it had been kept ‘in-house’.
- Ensure that, where possible, only relevant information is passed to the decision makers: As noted above, to minimise the risk of discrimination, the person carrying out the online search should not, ideally, be involved in the decision-making process and should ensure that only information that is relevant and of concern is shared with the decision makers.
Impact on schools
Schools should have familiarised themselves with the KSCIE guidance on online searches for shortlisted candidates. If not actioned already, schools should consider the approach they will take and review and amend their recruitment processes, policies, and privacy notices accordingly. Schools should also consider the practicalities of who will carry-out the searches (in particular, determine whether this process will be facilitated in house or externally), train staff and set appropriate search parameters which are recorded internally.
Prior to September, we updated the ISBA / IAPS template Safer Recruitment Pack, in particular, the recruitment and selection policy, to reflect this new requirement. The updated version is available on the ISBA and IAPS website.
For any specific queries, please get in touch.