There some interview questions that are best avoided, even though you might be tempted to give potential employees a grilling.
Although they might not be through the door yet, asking a candidate inappropriate questions at an interview is potentially dangerous territory.
The Equality Act 2010 makes it illegal for employers to discriminate against an applicant, either directly or indirectly, on the basis of any protected characteristics.
Protected characteristics are:
- Gender reassignment;
- Religion or belief;
- Sexual orientation;
- Marriage and civil partnership; and
- Pregnancy and maternity.
Any questions that touch upon candidates’ protected characteristics are best left out of any interview situation, as probing into these areas can leave employers open to a lawsuit. You should certainly avoid asking any questions that may give candidates the impression that these characteristics have formed the basis of your decision not to hire them – or to hire someone else instead.
Remember, although you are not yet their employer, discrimination claims can still be brought in the pre-employment period.
Questions to avoid that could be discriminatory
- “How old are you?
- “When do you plan on retiring?”
- “How do you feel about managing a team of younger people?”
- “Are you married?”
- “How many children do you have?”
- “How do you plan on balancing work and childcare arrangements?”
- “Do you want children?”
- “What does your husband do?”
- “Where do you come from?”
- “Is English your first language?”
- “What political party do you belong to?”
By asking these kinds of questions, if you later decide not to hire the candidate, no matter how valid the reason, they would have reasonable grounds to allege discrimination.
What can you ask?
While it is always safer to steer clear of any overly personal or sensitive topics, the Equality and Human Rights Commission advise that employers should avoid asking questions about someone’s protected characteristics unless they are very clearly related to the job.
For certain jobs, some of the above factors may directly impact an employee’s performance. These are often classed as Genuine Occupational Requirements (GORs). A GOR defence can be used in cases where the nature of the role makes it unsuitable for individuals with certain characteristics.
For example, it may apply where the essential nature of the job requires that it be carried out by a person of a particular sex, such as jobs which involve physical contact and therefore raise issues of privacy and decency. Likewise, under the Race Relations Act, employers may have grounds to employ only individuals of a particular racial background for “authenticity” purposes within a particular setting, such as Spanish or Indian restaurants.
It may also be appropriate for employers to ask questions about a candidate’s disability if it is or may be relevant to their ability to do the job and to assess any reasonable adjustments that would need to be made. For example, if the candidate’s disability means they may require extra time off work, this may be a factor that is considered relevant to their ability to do the job – and is therefore unlikely to be discriminatory.
Interview Question Top Tips
Perhaps the easiest way of preventing going off-piste is to prepare a list of questions beforehand using the job description, person specification and application form as a starting point. While it may feel a little rigid to reel off questions from a sheet of A4, the questions you prepare shouldn’t stifle conversation, simply act as a prompt.
As well as ensuring you don’t miss asking anything important, scripting the questions should help to avoid potentially inappropriate topics of conversation.
When it comes to potentially delicate interview questions, it’s always best to err on the side of caution – or if you feel that you need to probe into sensitive topics as it relates to the candidate’s ability to do the job, it’s best to seek advice from an Employment Law Adviser first.
It is also important to remember that interviews aren’t just for the candidate to impress you but for you to present your business in a positive light to potential candidates. The questions you ask will reflect your values, so it is important to remain professional throughout.
If you’re currently recruiting and are in need of Employment Law support, contact Ellis Whittam on 0345 226 8393.