Ms A. applied for a full-time job as the office manager of a construction company. After meeting with representatives of the company she was offered and accepted the position. Unluckily for Ms A., before she started work, the company checked her online activity and found a police mug shot of someone with the same name. This was enough to scare Ms A’s new employer off and, instead of confirming that their new employee was the same “R.A.”, the company gave her position to somebody else.
When she found out about her replacement, Ms A. had a background check performed on herself. This background check showed that she had a clean record and was not the “R.A.” of the mug shot. Unfortunately for Ms A, even though she forwarded this background check to the company, as her position had already been filled, and this was too little, too late.
All too often companies and recruiters turn to social media and search engines like google to vet prospective employees. While these are useful tools, it is important that, when using them, employers and recruiters are mindful that the information obtained as a result of a search may be inaccurate, misleading and may, as in the case of Ms A., relate to someone completely different.
There are millions of people who use the web and social media platforms. It is not uncommon to come across people living in the same area, who have the same name. This could pose significant problems unless care is taken to verify information obtained from social media and the web about prospective employees. It is a simple fact that the online world has brought everyone much closer together and the likelihood of your virtual doppelganger being found on the internet increases daily. In order to avoid cases of mistaken identity, companies should approach information gleaned on the web and social media sites with caution. Acting on this information without, at the very least, checking its accuracy, is a risky practice that may result in unfairness and legal action.
In South African law, once a job applicant has accepted a job offer, the employment relationship commences. Thus, had Ms A. been employed in South Africa under South African law, the company’s conduct in replacing her would have amounted to a dismissal, which, given the facts, would likely have been found to be unfair.
Furthermore, companies may face claims of unfair discrimination and breach of contract should they terminate a candidate’s employment due to a problematic background check conducted via the web or on social media. Additionally, if the company or recruiter discloses information pertaining to the background check, the candidate may well have a claim for reputational damage.
To avoid potential claims arising out of cases of mistaken identity, companies should finalise background checks before offering employment to a candidate and check the accuracy of the information obtained before acting on it.
Rosalind Davey is a partner, Lethuxolo Ntuli is an associate, and Tshepo Twala is a candidate attorney in Bowman Gilfillan Africa Group’s Employment & Benefits Practice.