Interviewing is an art form, and most comms professionals think they are pretty good at it – you are great communicators after all. However, the majority of professionals who interview job applicants are not trained in how to conduct a legal interview. Working out the right questions to ask a potential employee during a job interview is essential. You want to find the best fit for the role, so you want to ask questions that encourage a person to demonstrate their initiative and resilience, as well as their willingness and ability to adapt to different situations and challenges. But an interview does not give you carte blanche to ask about every subject under the sun. In fact, there are certain questions that are not only inappropriate but illegal. Are you up to speed on which questions are permissible and which ones are not?
Let us fill you in so that you don’t inadvertently find yourself embroiled in legal action.
Age – In most cases, it is unlawful to ask a candidate how old they are so be careful not to ask a candidate about their age or date of birth. Leading related questions would also be out of order, for example, asking an older applicant how long he or she sees themselves working until retirement. If they are treated less favourably because they are deemed ‘too young’ or ‘too old’ for a job, it may amount to age discrimination under the Equality Act 2010.
Of course, there are some exceptions to this rule, particularly if a person’s age means that they are unable to perform the inherent requirements of a job.
Physical and/or mental disability – The Disability Discrimination Act 1995 makes it unlawful to discriminate against someone based on disability. This covers individuals who have both temporary and permanent physical and/or mental disabilities, physical disfigurement, medical conditions, and work-related injuries.
Steer clear of asking whether a person has a disability or whether the disability would affect their ability to do a job – it’s discriminatory. The question may be disguised in another way, such as “When did you last visit your doctor and what was the reason?”
Candidates could come to the conclusion that you’ve not hired them due to the number of sickness days they have taken, with a potential backlash of claims of disability discrimination.
The Act also protects people with disabilities who may be accompanied by an assistant, interpreter, reader, or assistance animal, as well as those who use equipment and aids.
In addition to this, don’t ask candidates if they have previously filed for workers’ compensation.
There are some circumstances in which certain questions may be permissible if they directly address an individual’s ability to perform the inherent requirements of the role. For example, you could ask, “Is there any reason you may not be able to complete the duties required in this position?”
Mental health falls under the protected characteristics so you can leave yourself open to disability discrimination claims.
Cultural background – If, on the basis of name or appearance, you ask about a person’s place of birth, ethnic group, race, native language, religious views or affiliations, this could also be seen as potential discrimination. Questions around race, national origin, and ethnicity can often be very loaded, personal, and can even make the person you’re asking feel uncomfortable. In the majority of cases, these factors shouldn’t impact upon whether a candidate is able to complete the inherent requirements of a job. Basing a decision about whether or not to hire a person on where they come from is illegal under the Race Relations Act 1976.
There may be certain exceptions to this, such as where expertise in a certain culture or language is necessary for the proper fulfilling of a role, but this is a fine line that should be navigated with caution.
One important thing for you to ensure is that a candidate can work in the UK. In this case, it is permissible for you to ask if they have the right to work in the United Kingdom and require evidence of this, if necessary.
Another word of warning. If a candidate has worked or volunteered at a place of religious worship, such as a synagogue or temple, it’s better to not ask about it! The point of the interview is to gauge someone’s skills and expertise in the workplace, and you may be leading yourself down a path where you ask a question you shouldn’t – remember, religion is a protected characteristic.
Relationships and family – You should avoid questions relating to a candidate’s sex and gender identity, sexual orientation, relationship status, family and carer responsibilities, and whether they are pregnant, might be pregnant, or plan to become pregnant. Yes, it’s a long list, but asking applicants questions along these lines can amount to discrimination under the Sex Discrimination Act 1975.
It is acceptable, however, to ask whether there are any responsibilities that could interfere with a person’s attendance at work.
Whether someone has children or other dependents (e.g. disabled relatives or elderly parents), doesn’t have children, plans to have children, or not to have children, ultimately shouldn’t affect your decision to hire them and definitely should not be the reason upon which you rule them out.
In addition to this, asking questions about a candidate’s relationship or marital status is unlawful, as it is irrelevant to their ability to perform the inherent requirements of a job.
Previous criminal convictions – Under the Rehabilitation of Offenders Act 1974 candidates do not have to disclose ‘spent’ convictions (most are spent after five years) and it is unlawful for an employer to discriminate against anyone with a spent conviction. Under the Act, however, there are exemptions where all convictions should be disclosed – including those that are spent – and this includes where the job is for a senior role in the banking or financial services industry.
Asking if a candidate uses drugs or alcohol – In most cases, this is a no-go. There may, however, be some situations in which the consumption of alcohol or drugs may be relevant to a job. For example, if a candidate is taking medication that may impact their ability to drive as part of the role, asking such a question may be legitimate.
To avoid getting caught out, prepare all the questions you are going to ask using the job spec. Your focus should be on looking for evidence that they can do the job well. Look also at the skills that the person needs to demonstrate. Interviewing in pairs is a good way to reduce the risk of discrimination.
Ideally, you should have a bank of good interview questions that you can roll out. Please do take a look at these ten, very safe questions that we recommend you include in your interview armoury:
Check that your decisions are based on how each candidate met each point in the job spec and the person spec. Don’t get swayed by liking someone because you have things in common (known as the Halo effect). You will end up with a team of versions of yourself; it’s much better to build a diverse team, one which will challenge you and keep you learning.
It isn’t appropriate to ask a recruitment consultant if they think the candidate is going to have a family soon or whether they think they are in good health. As an employer, you can’t discriminate against pregnancy. Recruitment consultants need to operate within the same legal constraints as employers so you cannot feedback that someone is too old/young for a role as this is age discrimination. Please think carefully before you give your feedback. You should be honest with your feedback as that helps the candidate to improve their interview technique for next time, but keep it relevant, and keep it legal.
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