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Job interviews can be tricky for employers. Questions are often asked that seem harmless, but actually expose businesses to legal risk.
Job applicants are protected from discrimination in respect of nine protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. This protection encompasses the entire recruitment process, from preparations and advertising, to interviews and job offers.
A question about a protected characteristic will not necessarily be illegal. However, if an applicant believes that their answer impacted the employer’s decision-making, or affected the terms they were offered, they may bring a discrimination claim.
In a recent survey of 1,000 companies, conducted by Hyper Recruitment Solutions, 85% admitted asking illegal interview questions, 91% did not think it was illegal to ask the origin of a candidate’s accent, over half had asked if an interviewee was in a relationship or married and 42% had questioned whether they had plans to start a family.
In light of these worrying findings, here are five questions to avoid
1. “That’s an unusual accent. Is English your first language?”
Avoid questions about race or nationality, unless they are relevant to the role. Employers can check someone’s eligibility to work in the UK, but this is typically done at the end of the process.
Employers can reject candidates for not being fluent in English. However, whether English is a person’s first language has no bearing on their fluency. Any suggestion that your assessment was tainted by negative assumptions about nationality could be discrimination.
2. Have you got any kids?
Questions about marital status, maternity leave and family plans are red flags. Equally risky are questions about someone’s flexibility and home life. Unless you can objectively justify a business need for that candidate to work long hours or be accessible at short notice, refusing a female (or male) applicant for these reasons may be indirect discrimination on the ground of sex.
3. How old are you?
A candidate’s age should have no influence on your decision. You can check whether someone is of the minimum legal age to do the job (i.e. over 18 to sell alcohol), but you should ensure that their maturity (or youth) plays no part in your questioning or decision-making.
4. Did you take any sick leave in your last job?
Questions on health and disability should be avoided, other than in extremely limited circumstances (i.e. where a disability is an occupational requirement or to assess whether they can perform key tasks).
If an applicant is clearly disabled, or mentions their disability, limit your enquiries to whether there are any reasonable adjustments you could make.
5. Oh, are you religious?
Quizzing someone on what religion they practice can be religious discrimination. This also extends to the perception of someone’s association with a certain belief or religion.
While an employer is allowed to explain business needs and job requirements to see if candidates can meet them, you should not ask about someone’s religious beliefs, nor should these affect your decision.
To minimise legal risk and ensure you get the best candidate, your focus should always be on their ability to do the job. We recommend that employers plan their questions in advance, keep records of the entire recruitment and decision-making process, implement a robust Equal Opportunities policy and train their recruitment personnel accordingly.
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