Unlawful Interview Questions

Acceptable and unacceptable interview questions

The purpose of holding job interviews is to obtain as much information as you can on your potential new employee. It therefore does not come as a surprise that on occasions employers are crossing that legal line on what they can and cannot ask.

There are appropriate interview queries and inappropriate queries, it is important that employers are aware of legislation that surrounds these.

(1)  “What is your colour/ethnicity/race?”

This question is illegal, the ability to do the role cannot be measured on an individual’s colour/ethnicity/race. Exceptions may be made in the event that a modelling agency requires someone specific for the role.

(2)  “What age are you?”

An employer may ask if the candidate is over the age of 18, this is to assure they are legally old enough to carry out the duties of the role. For example, bar and restaurant work. Age discrimination is one of the most recent discrimination rules under the Equality Act 2010 and provides that age is not a clear basis when assuming an individual’s ability and maturity to carry out a job.

(3)  “Are you pregnant?”

No, no, no! Employers and prospective employers must not ask the employee/potential employee this question.

Asking or basing a hiring decision on pregnancy would result in a violation of the Equality Act 2010 and could result in legal liability against the employer. Asking the candidate what their long-term career plans/goals are should be suffice when measuring the individual’s commitment to the company.

(4)  “Do you have any disabilities/are you disabled?”

The general position of the Equality Act 2010 is that it is unlawful for an employer to ask any potential employee about their health or disability. Instead, an employer may ask the candidate if they can carry out the specific duties required in the job description.

If the employer offers the individual the job he/she may then may ask the employee health questions. This is to allow them to make reasonable adjustments to the workplace so that they are not put at a disadvantage to other employees.

(5)  “What are your religious beliefs?”

Employers have been seen to ask this question to determine applicants work schedules. For example, if the employee will be available to work on a Sunday. Unless there is a need for a candidate to have a specific belief, religious questions should not be mentioned at all.

In addition, there is no reason that candidates should mention their religious beliefs on their CV/application form.

(6)  “Do you drink/smoke?”

Even if the organisation has a strict no-smoking policy, employers cannot ask this question as part of the interview process. Asking a candidate this question crosses the line between the workplace and the applicant’s personal life.

Further, this question can suggest discrimination –  asking a candidate whether they drink or smoke would imply that this is a determining factor in the hiring process. Should you directly ask this question, you are opening yourself up to discrimination claims if the candidate does not get the position they were interviewed for.

The reason behind this is, drinking alcohol and smoking cigarettes in the UK is legal and something that an employee would do outside of work. Instead, employers may ask if the employee has previously been disciplined for breaching company alcohol and smoking policies.

(7)  “Do you have any children?”

Interviewers should not ask this question. It is understood that family obligations may interfere with the role, however, it is important that employers do not make assumptions into such situations.

Instead, the interviewer may ask the candidate if they would be willing to work overtime if the opportunity were to arise.

(8)  “What is your marital status?”

Again, this question is irrelevant and links back to number 7. It is illegal for an interviewer to make their hiring decision based on marital status. However, they can ask a candidate’s career plans and assess it from there.

(9)  “Do you have any debt?”

An employer should not ask a potential employee about their financial status or credit rating during an interview, credit history should not measure an individual’s performance in a job.

Some exceptions are made to this question in the event that the role involves a financial or banking position. The employer may then request a credit check granted he receives the employee/potential employee’s permission.

What should employers consider?

Certain interview questions are clearly discriminatory and avoided by almost all employers with the correct legal advice.

However, when trying to get a good picture of the candidate during the interview, straying into ‘grey areas’ can be easily done. What you think is a simple and harmless conversation, may in fact be discriminatory which in turn exposes you to costly litigation claims.

Employers concerned with about any of the issues raised in this article can take advantage of our Employment Law Services (ELS) free consultation service – call us today to arrange your free consultation – 0800 612 4772.