Seemingly innocuous: the minefield of asking questions at interview

Job interviews are a crucial part of the employee selection process. For the prospective employer, it is the best way to gauge the candidate’s suitability for the role and test their ability to do the job on offer. However, they should be wary of asking candidates certain questions which could land them in hot water, with the potential for discrimination claims in tow. Whilst in this day and age many would think (and hope) that discriminatory questions and comments are a thing of the past, a recent survey carried out by the BBC on its LinkedIn page  suggests that the reality is very different.  It is important that employers prepare properly for interviews and give careful thought to the questions they will ask the candidates.

In the UK, legislation protects job applicants from discrimination in relation to the following “protected characteristics”: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Given that there is no cap on the amount of compensation that can be awarded for discrimination (and that compensation can be awarded for injury to feelings), it is imperative that employers keep interview questions focused on the behaviours, skills and experience needed to perform the job. Seemingly innocuous questions asked by prospective employers, such as the following, could indicate discrimination and be used as evidence of discrimination in a subsequent employment tribunal claim: 

• “Is English your first language?” – For many jobs a requirement that candidates can speak English fluently will be a legitimate one, but whether English is their “first language” is immaterial and could fuel a race discrimination claim from an unsuccessful candidate.  
• “How many sick days did you take at your last job?” – Employers should always avoid questions about sickness, health or disabilities at the interview stage as these could indicate disability discrimination.  In addition, it is unlawful under the Equality Act 2010 to ask questions about health before making a job offer, except in prescribed circumstances. These include where they are necessary in order to establish if the candidate is able to carry out a function that is intrinsic to the work concerned, or where they are necessary to establish if adjustments are needed to the recruitment process for disability.  In practice, there are very few situations where health questions will be permitted under this exception.   Employers who ask prohibited health questions could face investigation by the Equality and Human Rights Commission and enforcement action, in addition to disability discrimination claims from candidates.  Once an employer has made a job offer, they can make enquiries into their new recruit’s health but they must not discriminate on the back of the answers received.  Questions must relate to the new recruit’s ability to carry out the role effectively or to whether any reasonable adjustments are needed in order to accommodate their needs. 
• “Are you married?” – Whilst this may appear to be a harmless question, the subject of marital status is a minefield and one that employers should strictly avoid at interview. Not only is this a personal question, but it is also potentially discriminatory in nature. For example, it could be used to determine a person’s sexual orientation, something which has no bearing on the candidate’s ability for the role and which is not therefore relevant to the recruitment decision. Likewise, questions about whether a candidate has children/is planning a family soon are ones to be avoided. 

Given the potential risk for employers (as they could be liable for the discriminatory acts of their employees), it is wise for employers to provide guidance to employees involved in interviewing candidates. For example, it is a good idea to draw up a list of interview questions, making sure that all questions relate only to the job and the candidate’s ability to perform it and to ask all candidates the same questions. It is also prudent for employers to ensure that they train all employees on diversity issues before permitting them to interview candidates and that the interview panel is diverse. Keeping interview notes recording how the candidate performed (but avoiding personal or insulting comments) is also key – remember these may have to be disclosed as part of any legal proceedings Taking these steps will not only help to ensure that the best candidates are appointed, but will also assist in defending discrimination claims.