Interviews: Questions you can’t ask

Whether it’s growth, replacement, or a speculative fit – many businesses make the decision to employ new staff. There are dos and don’ts in job interviews. There’s a fine line between legal and illegal interview questions.  Whilst the purpose of the interview is for you to determine if your candidate is the right person for the position, there are laws to protect the interviewee from being asked illegal questions that could possibly lead to discrimination.  

Discrimination 

Age discrimination is based on stereotyped prejudices. For example, younger workers perhaps being less committed and older workers more loyal would be seen as being ageist. A younger applicant could be considered a cheaper option and experienced older candidates the more expensive option (higher salary, pension, benefits costs, etc).  Age discrimination also works the other way. An interviewer may consider an applicant too young, particularly if the job requires managing others who may be older. 

• Sexual: Interviewers should not refer to a person’s marital status, children they may have now or in the future, or their sexual preference. All could be grounds for discrimination. An interviewer might be deemed to view a person being married favourably in that they may see an applicant as being more stable. Alternatively, unfavourably – they may see a conflict of interest between a single person having more time to devote to the job over a married person who might have to juggle family commitments. 
• Religion: Asking what religion a person practices or how can be a sign of religious discrimination. It also extends to a person’s association with someone of a particular religion or belief.  However, it is acceptable for an employer to explain the requirements of the job and the business need and ask if the interviewee can meet them i.e. asking about availability for weekend working or shift working.  
• Racial:  The Equality Act 2010 makes it unlawful for an employer to discriminate against someone because of race which includes:
  • Colour 
  • Nationality Ethnic or 
  • National origins  Under the Act, it does not matter whether the discrimination was made on purpose or not. What counts is whether, through an employer’s actions, a candidate is treated less favourably than someone else because of race. However, it is important to note that the employer does have a right to ask whether the candidate is legally entitled to work in the UK. Neither is it illegal for an employer to choose whether or not to select someone based on their fluency in English. 

Disabilities 

The only time an employer can ask about disabilities is if it’s to establish whether an applicant needs an assessment to determine their suitability for the job. It could be that adjustments are required to accommodate a candidate’s needs. For example, fitting a disabled toilet.  The reason they do have the right to ask is that an employer is only obliged to make ‘reasonable adjustments to accommodate a disabled person. An employer is allowed to reject the application if a candidate is unable to do the job despite adjustments made.  

Lifestyle Choices 

It is also illegal for employers to ask a jobseeker any questions relating to personal lifestyle choices. For example, about their consumption of alcohol, whether they smoke or use recreational drugs. A company can set out rules in the staff handbook regarding this, however, what an employee does outside of work is not the company’s business. There is an exception to this in industries where they can legally carry out drug and alcohol tests, e.g. the railway. 

Criminal Convictions 

An employer does have a right to ask about convictions or imprisonment, particularly in relation to sensitive positions where it may have a direct impact on the job, e.g. working with children or vulnerable adults. However, this does not include arrests without convictions or involvement in demonstrations. 

Memberships or Affiliations 

Questions about membership or affiliations with any organisations should also not be asked at interviews. The only time it would be permissible is if they are directly related to any problem in terms of time commitments and how that might affect the ability to do the job.  

To finish 

Remember, before you even get to the interview stage, your job and person description should be written professionally and preferably overseen by a recruitment professional if at all possible.  Effective interviews bring you one step closer to hiring the right people but be careful how you ask those questions.  If you are unsure and would like a little guidance, get in touch with our HR and Employment department.