There have been many cases of people claiming discrimination before they are even employed, and in some cases, there have even been instances where applicants apply and interview for positions with the sole intention of making a claim. For example, in 2008 an accountant applied at 22 firms offering graduate positions, and upon being rejected she took legal action against each of them, earning herself a pay out of £4,000 – £10,000 each time. A similar case, involving a serial litigator based in the Midlands, was thought to have taken action against over 60 firms “without ever even attending a job interview”.
The above cases are obviously a rarity; however, it illustrates that the beginning of your responsibility as an employer starts before any documentation is signed. As most people are aware, personal questions are usually off limits unless they are specifically relevant to a role that you are applying for, but for clarification we’ve created our top five list of questions you shouldn’t ask in an interview.
1. Anything to do with Pregnancy
It is illegal to discriminate against someone if they have children, are pregnant or are planning to start a family. Yet, this still seems to be a pitfall most employers fall into. Avoiding the term doesn’t make it legal. For instance, asking “are you trying for a family” or “do you plan to have children in the next two years” is still unlawful, and could put you in a dangerous position should that applicant try and claim discrimination.
Even if a candidate is showing or has told you themselves that they are pregnant, it is not advised to ask questions regarding the matter, that is of course unless you have objective justification for asking questions of this nature. The Equality Act 2010 states that discrimination can be warranted if an employer can show the discrimination is a proportionate means of achieving a legitimate aim.
- A legitimate aim is the reason for the discrimination. For example, a hospital advertising for a surgeon’s position requiring at least ten years’ experience could seem like indirect sex discrimination if a woman taking maternity leave could not meet the requirement of at least ten years’ experience. However, this could be justified if the hospital could show that the job could not be done properly without that amount of experience.
What should I ask instead?
If you do not have an objective justification for asking direct questions regarding pregnancy and/or maternity, and the role that the applicant applied for involves a lot of manual handling and activities with physical strain, then it is best to describe all the necessary functions that they will need to perform in the role, and ask them whether they believe they are able to do so.
2. Do you suffer from a disability?
Similarly to pregnancy, an interviewer shouldn’t ask questions about health or any disability issues until a job offer has been made. While a candidate with a disability is under no obligation to inform you that they have a disability, they are more than likely going to notify you if they require you to make reasonable adjustments. According to the Equality and Human Rights Commission, there is no duty on employers to make reasonable adjustments unless they know an employee is disabled.
What should I ask instead?
As with pregnancy, describing the role and its requirements in detail (if it requires manual handling for instance) and then asking the candidate whether they are capable to perform those functions, is the best route.
3. Do you practice a religion?
While there may be other reasons an inexperienced interviewer may ask this question, the most common is an attempt at understanding the applicants schedule. What holidays are they likely to book off? Will they not be available on weekends? Etc.
What should I ask instead?
If you are just trying to get a better understanding of a candidate’s schedule then ask their availability directly, do not link it to a religious enquiry. Instead of asking them which holidays they celebrate, which is just a subtle rewording of “do you practice a religion?”, ask if they are available to work on weekends and the relevant times in the year where their employment is necessary.
Additionally, if there are any responsibilities within the role that you believe could cause a situation when that candidate is an employee, then define the role and ask the question “can you think of any personal reasons you might not be suitable for this role?”
4. What is your ethnicity?
A candidate’s ethnicity should have no bearing on the role whatsoever. There should be no need for you to determine an applicant’s skin colour or race. If you feel that you are in a unique circumstance where this question is relevant to your business, then please contact our free helpline before proceeding with your interview.
What should I ask instead?
The only example that is arguably acceptable would be if you were advertising for a role that required candidates to be bilingual. It is likely that some applicants may be native speakers of that language and could result in you determining their race.
5. How old are you?
Age is usually the question that employers will try and work around, asking questions around their graduation dates or previous employment. However, it is still a protected characteristic and as we’ve seen from the examples above, can cost you a lot of money. If you are employing someone where they are selling alcohol or other age-restricted products, then it is perfectly acceptable to ask if they are over 18. Another popular question that is asked are an applicant’s retirement plans, this is also controversial.
However, to go back to the point of objectively justifying discrimination. In the case of age, there are times in which indirectly discriminating someone because of their age could be acceptable. For example, the fire service requires all job applicants to take a number of physical tests. This could be considered as indirect discrimination because of age, as older people are less likely to pass the tests than younger applicants. However, in most cases the fire service can justify this, because firefighting is a job which requires great physical ability. The reason for the test is to make sure that candidates are fit enough to do the job, and ensure the proper functioning of the fire service – which is a legitimate aim. Therefore, making candidates take such physical tests is a proportionate way of achieving this legitimate aim
What should I ask instead?
Again, asking a candidate if they are over the age of 18 is suitable if the role requires them to handle age-restricted products, beyond that their age shouldn’t have an effect on your decision to hire them. Provided that they have the relevant experience and qualifications to work within that environment.
