You’ve advertised the job, had a huge number of applicants, whittled them down to the chosen few, called them in for interview and have some killer questions lined up to sort the wheat from the chaff…
Wait a minute – did you know that there are certain questions that you just can’t ask a job candidate?
In a recent survey, it was found that over 40% of women had been asked ‘inappropriate’ questions during a job interview. Only 12% of men had to put up with such an indignity.
What are inappropriate questions? The survey found that they concerned relationship status, age and future family plans. 8% of female applicants said that they had been asked even more egregious questions such as whether they were currently pregnant and whether they found their interviewer attractive.
All of these are questions that an interviewer has no right in law to ask a job candidate.
Let’s look at some categories of questions that should be avoided by employers.
Sexuality, marital & parental status
Questions about an applicant’s marital status, whether they have children, or are planning a family soon could be cited as evidence of discrimination in a tribunal case.
If an employer asks about any responsibilities that could affect the applicant’s ability to attend during working hours, this is acceptable, since there is no mention of topics associated with protected characteristics.
It’s important to note that these questions could also be used to find out about an applicant’s sexual orientation, which is a protected characteristic and therefore off limits for interview questioning.
Health and disability
It’s illegal to ask an applicant about their health history, including significant time taken off sick unless a conditional job offer has been made.
However, employers are expected to make reasonable adjustments so that a disabled employee can carry out their role with no less disadvantage than an able-bodied employee and in order to establish what they need to do, they may well ask about an applicant’s disability. Provided that this is the reason behind their question, such an approach is permissible.
Such questions can also be asked if the information is needed to enable the employer to put adjustments into place so that disabled candidates don’t face any disadvantage attending the interview or taking part in a selection test.
Once the job offer has been made, health enquiries can be initiated. However, those enquiries should only be used to make sure that the new employee will not face obstacles when carrying out their job.
An employer cannot ask for a medical report on an employee without their knowledge or consent.
Age
A person should not be treated any differently if they do not include their age on an application form. Nor indeed should it be requested either directly or indirectly at the interview – for example, asking a candidate when they graduated or talking about potential retirement plans, under the guise of discussing the company’s pension arrangements.
However, if the employer uses an equality monitoring form that will not form part of the recruitment and selection process, a question about age can be included.
There are certain jobs where particular products are handled for which there is an age restriction – alcohol sales require the seller to be over 18 and so an employer would need to ask an applicant’s age if there is a legitimate requirement in the job itself.
Criminal convictions
Interview questions about criminal convictions do not have to be answered if the conviction is spent. An employer can’t refuse to employ an applicant because of their spent conviction.
There are, however, certain exceptions where a criminal record will serve as a bar to employment – teachers, childminders, senior banking or financial roles are examples.
Trade union membership
An employer can’t raise the topic of trade union membership at an interview. Since a person cannot be subject to a detriment (such as dismissal or not being offered a job) because of their union membership status (and that means both being a member and not being a member), an employer’s attempt to discover that status might rebound on them later if it is used as evidence of intent to discriminate.
Race/Nationality/Religion
An employer can ask questions which relate to an employee’s ability to work legally in the UK, but it is best to avoid any further questions above and beyond the requirements of the right to work legislation, such as those about their place of birth, race, language or religious views. In the event that the applicant is rejected for the position, such questions could be used in an
Employment Tribunal case
Depending on the work environment, an employer may have a requirement that all staff speak English fluently so that they can work together effectively and safely but it does not follow that English has to be the mother tongue of the applicant.
Positive action
If the employer has identified under-representation or disadvantage of a particular group in the workplace and wants to address the issue, they can take steps to select people who share the protected characteristic of that group (provided that they are suitably qualified to do the job) and can therefore ask questions regarding that protected characteristic. This is known as positive action and the employer will not usually face any legal consequences as long as they can show that the positive action is justified because of genuine disadvantages and under-representation faced by the group in question.
Data Protection
An employee has the right to apply for a copy of any personal data that their employer holds on them, as well as the right to ask that inaccurate information is either corrected or deleted. They can also claim compensation from their employer if they suffer a detriment in the event of a breach of the employer’s legal obligations. It follows therefore that employers should safeguard their own interests by adhering to the law wherever possible.
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