Interview questions you thought you could ask, but can’t

questions-you-cant-ask

Recruiters may feel that by asking personal interview questions they are making an exceptional effort to find the very best candidate, someone who will never let an employer down. But sometimes, what seems like due diligence strays into illegal territory, especially if you ask banned questions. Do this and you risk a tribunal.

Individuals and workers are protected by law against discrimination on gender, disability, sexual orientation or religion. Sometimes this is cut and dried and certain questions are absolute no-nos. But the law is fluffier in places, notably around disability, when a company has to act in what is deemed a reasonable way, depending on its size and resources.

So let’s tick off the tread-with-care areas and name the cardinal sin recruitment questions, starting with sex discrimination.

 

Gender

The law on sex discrimination is based on one sex being treated less favourably than another. So if a question is asked of all candidates this in itself is not discriminatory. However, currently it is usually women that will take the majority of time off until the right to shared parental leave is introduced in 2015.

In terms of the essential criteria for the job the interviewer should only be asking questions that are relevant to the role and the requirements of the job. If it is not relevant and a claim was made, the interviewer would have to justify why they were asking this question and how this affected their decision to shortlist or offer the job to this candidate

No go questions

•“Are you or do you intend to become pregnant?”

•Asking (only) women: Can you work unsocial hours? “What are your childcare arrangements?”

•“What is your marital status?”

•“How would you fit into an office dominated by the opposite sex?”

Age

Candidates should not be asked to state their age but CV’s will usually let you hazard a guess based on when the candidate last attended full time education and what type of qualifications they have, O levels being a prime example.

No go questions

•“Are you too long in the tooth to do this job?”

 

Race & Religion

Again, just stick to questions that are relevant to the job.

No go questions

•Of a minority ethnic: “How do you feel about working in an all-white department?”

•“How would you deal with negative comments about your religion?”

 

Health & Disability

It’s good practice to ask all candidates whether they need any “reasonable adjustments” to attend an interview. If they say yes as they have a disability as defined under the Equality Act 2010, then you must comply. This may include providing an accessible venue for interview, or a hearing loop, perhaps. This does not mean that the candidate does not have to meet the essential criteria for the job. But if you ask this question at this point, then all other candidates should have satisfied this criterion too!

When selecting candidates, ensure they are objectively scored and you will stay on the right side of the law. So a disabled candidate was turned down because they were not the best interviewee, or no reasonable adjustments could be made to that job. For example there is no access to the building or the job could not be carried out another venue such as the home. What is reasonable will depend on the size and the resources of the employer.

No go questions

•Questions about health or disability before the offer of a job is made or a person is placed in a pool of people to be offered a job.

•“What is your sick record?”

•“What’s the extent of your disability?”

Read the ban in questions on health and disability during recruitment

But there are exceptions to this such as where physical or mental fitness is a requirement of the role

 

Permitted questions

•“Can you undertake an assessment to safely climb scaffolding?” (Construction job)

•“Are you able to lift people?” (Carer’s job)

 

How to avoid a tribunal

•Ask the same questions  of everyone

•Score answers objectively

•Avoid asking irrelevant questions

•Train interviewees to avoid making stereotypical assumptions about certain groups of people

 

With thanks to: Fiona Martin, Director and Head of Employment Law

David Marshall, CEO of Marshall ACM

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