What can’t a prospective employer ask at an interview?

Potential employers should be cautious around subjects like age, disability, race, religion or sexual orientation.

There are a number of potentially risky interview topics, mostly around areas such as health, family/personal matters, and so on. This is because discrimination law applies to job applicants as well as employees and workers. So, what can you do if you’ve been asked an inappropriate question? And what should hiring employers avoid asking?

What are the protected characteristics under the Equality Act?

The protected characteristics under the Equality Act are age, disability, gender reassignment, marriage/civil partnership, pregnancy & maternity, race, religion or belief, sex, and sexual orientation.

Who is protected under the Equality Act?

Employees, workers and job applicants are all protected. Discrimination is a “day one” right that applies right from the start of employment – and even beforehand.

Individuals are also protected from discrimination during the recruitment process, which is what we’re focussing on here.

Let’s look at the individual protected characteristics…

Age

Don’t ask about age or require a date of birth. Don’t ask for the years in which exams were taken or degrees obtained. Asking how much longer a candidate to go until retirement is also unlawful.

The difficulty is that a quick tour of social media will probably yield enough information to gauge someone’s age.

Disability – don’t ask about health unless it’s definitely, justifiably relevant to the job in question

Thinking about disability discrimination, hiring managers shouldn’t ask about the number of days of sickness absence you’ve had in the last period. This is because there are any number of reasons for sickness absence, many of which may indicate a disability or ongoing health issue.

However, if the role includes particular duties that a health condition may mean you can’t carry out, the hiring employer is allowed to ask questions to check whether you have a condition that may affect your ability to do that part of the job. The classic example here is a role that requires heavy lifting – say a removal company operative, who would be required to lift and carry heavy furniture. If a candidate has a back condition that means they can’t lift and carry heavy furniture, they couldn’t do the job.

In certain cases, health questions can be asked after an offer has been made, to check the appointee can do the job and deal with whether reasonable adjustments are necessary.

Marriage/ civil partnership/ sexual orientation, pregnancy/ maternity/ adoption/ parental leave/ flexible working – the family-friendly areas

Don’t ask about marital status, baby plans, or sexual orientation – none of these factors will be fairly relevant to the recruitment decision.  These days, many people will want to talk about working patterns and flexibility and with the right to request flexible working being a “day one” right, it’s often sensible to raise it at the interview stage, provided there is an open discussion, and the decision-making process is documented appropriately.  Decisions shouldn’t made based on the fact that candidate A wants “standard” hours in the office and candidate B wants flexible hours and a hybrid 2/3 pattern, if it’s a job that could be done flexibly.

Race/ nationality/ ethnic origin

Don’t ask questions or make assumptions about a candidate’s race or origins based on their name or skin colour.

Religion or belief

Don’t ask questions or make assumptions based on a candidate’s name, or outward displays like certain styles of clothing.

Religion is a protected characteristic under the Equality Act.

What happens if a prospective employer asks discriminatory questions?

If a candidate is rejected because of their age, sex, race, health reasons that could relate to a disability, or because it’s assumed they have plans to start a family or ask for flexible working, that is potentially discriminatory and could lead to a claim.

It’s safest to avoid the potentially risky topics at interview. Not only are they irrelevant in most cases to the individual’s ability to do the job, but they could land the employer in an Employment Tribunal.

For instance – and I see this a lot – what about the individual who’s in the process of extracting themselves from a toxic work environment, who’s taken time off sick with stress? There’s no expectation that such absence levels would continue once they are in a new job: no more toxicity = no more stress = no more absence, we hope. As such, taking account of time off for stress isn’t relevant to whether they can do a good job for you.

Whilst hiring employers don’t have to give written reasons why a candidate has been rejected, it’s best to keep a good record of all applications and interviews conducted. All candidates should be asked the same questions.  You should check before an interview whether the candidate needs any adjustments to enable them to participate fully – because obligations around disability discrimination apply.

Then, if a rejected candidate alleges discrimination, the hiring employer will have evidence of why another candidate was preferred. And ideally that will prove they were both asked the same questions, none were potentially discriminatory, and it’s simply that the best candidate was selected.

If not, get in touch and we’ll help you navigate through the situation, and if you’re the employer, we’ll help you make sure it isn’t repeated in future.

Just get in touch at employment@Qlaw.co.uk to arrange a free exploratory chat.

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