Mis-representation in Recruitment (and by Rory)

I'd read an article in The Times a couple of week's ago about the recently revealed conversation between Rory Bremner and Margaret Beckett.

Since then I've been thinking about it's relevance to recruitment. The REC and ERA (and probably all other recruitment bodies) have a code of practice in place which discourages unethical practices (ie, phoning up Cadbury's and pretending to the work for the Institute  of Marketing in order to get the names of their Brand Managers).  However, I wanted to check if this sort of misrepresentation was in any way illegal. 

Very helpfully Belinda Brooke, the REC's Head of Legal Services was able to oblige.  The response is rather weighty (that's legal talk for you!) but well worth a read.  Here is what she said.

My stance would be as follows: It is not illegal per se to impersonate someone else and so illicit information from a third party that might not have been given if the true identity of the person carrying out the impersonation had been known.  There may be some uncomfortable issues around such a practice but if it was illegal it could inhibit important undercover investigation work carried out by the statutory authorities, professionals such as lawyers and accountants and the media.  Much of this work is in the public interest.

In the context of head hunters and recruiters there will of course always be ethical issues to consider where those recruiters impersonate a 3rd party and thereby gain commercial secrets and other information from their competitors.  To an extent mystery shopping is a common market research practice carried out across all sectors. Sometimes it is undertaken generically to gain an understanding of market trends, market features and other factors affecting the market including the relative effectiveness and efficiency of competitors within it and sometimes it is carried out by a specific operator to gain a market edge.  In the latter category, to the extent that recruiters undertake such activity we would expect them, if they are REC members, to do so sensitively and with minimal impact on the target business[es] in terms of time and resources taken up so that the business at the receiving end suffers minimal inconvenience.  If a company does suffer unwarranted inconvenience and disruption then that is something that we would investigate under our Code of Practice. 

So what about direct headhuting?
Where a business, such as a recruiter, impersonates a third party and goes directly in search of the details of a competitor’s or another company’s employees (such as in the scenario you have suggested) in order to approach those employees, there are certain legal factors that recruitment business would need to consider.  For example if it fraudulently acquired personal data about an employee from an employer it may be in breach of Section 55 of the Data Protection Act 1998 which effectively provides that obtaining personal data without the employer’s consent would render the recruiter guilty of an offence and subject to a fine. The fact is that many employees don’t object to approaches from head hunters because it can be flattering and welcome and so never object.  They would only object where the recruiter’s had somehow compromised them and in such cases they could, potentially, make a complaint to the Information Commissioner.   Alternatively if a recruiter, having gained personal data then wishes to contact an individual that recruiter would first have to check whether the individual is registered with the Telephone Preference Service operated by the Direct Marketing Association.  If they were the individual could not be approached.

In addition, Claire Walker, the RECs Head of Professional Standards highlighted some wording from the sector-specific code of practice for the Association of Executive Recruiters:  'In performing an assignment the following standards must be observed ...  ... c) in carrying out any research, a member must not, and must ensure that its consultants and researchers do not deliberately misrepresent its or their identity or the purpose of that research.'

This code only applies in a specific way to members of the AER, though I think it's interesting that if they can et that standard for themselves, maybe it's not too unreasonable for other sectors to observe. Our approach to any general complaints we received about agencies in other sectors doing such a thing might rely on exactly the criteria Belinda refers to, ie extent of disruption or use of resources.

We do understand the pressures on consultants to be creative, commercial and meet their targets etc, but when clients complain about it, it is actually one of the most damaging things to the reputation of the industry in the client's eyes, so given that our Code is there to protect the reputation of the membership overall, we could do little other than take a dim view if we received an angry complaint from a client company. It always depends on the context of a specific complaint, but that would be my take on it in general terms.

And there you have it.  I think Claire sums it up rather well.  If clients find out it's "one of the most damaging things to the reputation of the industry".  I'd quite like to stay on the fence on this one, so I guess the advice is if you are going to do it try to limit the damage and don't get caught.  Rory's shouting about it and I don't think it's done him many favours in the popularity stakes!