Preparing for interview: illegal questions

As every employer knows, working out what to ask a prospective employee isn’t always as easy as it first appears. You might think you’ve done enough just by finding the right people for the role in question; sifting through CVs and setting up interview times can be a time consuming job, especially if you’re not using a recruitment agency. But it’s also important to dedicate the right amount of time to setting your interview questions as well.

What you ask is just as critical as what you don’t ask. You’ll need to work out a series of questions that elicit whether the person is right for the position in hand – whether they have the skills, the competency and the attitude to be an asset to your company. But beware – there are also questions you simply cannot ask for legal reasons:

Are you from the UK/Is English your first language?

It’s ok to check that an applicant is eligible to work within the UK before hiring them. But any other questions relating to race, religion or native language are expressly prohibited as they could raise questions of discrimination.

There may be a requirement for staff to speak fluently in order to operate effectively, but there is absolutely no obligation in most cases for this to be a candidate’s mother tongue.

What you can ask: ‘What languages do you fluently write or speak?’

Are you married?

You’re not allowed to ask any questions to do with marital status, children and future family plans. These are viewed as being of a potentially discriminatory nature. And in some cases, they can be seen as a way of working out a person’s sexual orientation – something that has no bearing on a candidate’s ability to do a job.

What you can ask: ‘Do you have any current commitments which may affect your ability to do this job, or which may impact your attendance?’

How old are you?

This may seem like a perfectly innocent question on the surface, but there are several reasons why you cannot explicitly ask a candidate their age. It could be classed as discrimination as it may sway your decision. Similarly, avoid any slightly more ‘subtle’ attempts to ask the same question, such as asking for a graduation date or potential retirement plans.

What you can ask: ‘Are you over 18?’

How many sickness days did you take in your last period of employment?

It is unlawful to probe too deeply into health or disability issues before a position has been offered. Questions about previous sickness absence fall into this category. You can only ever ask these type of questions when establishing whether an applicant needs an assessment to determine their suitability for the job, or to determine whether adjustments need to be made in order to adequately accommodate a candidate’s needs.

Once a position has been offered, enquiries can be made regarding health, but only if these relate to a candidate’s ability to carry out the role effectively. For more information, take a look at the Equality Act (2010) here.

http://www.legislation.gov.uk/ukpga/2010/15/schedule/9

What you can ask: ‘Do you have any specific requirements in order to perform this job effectively?’

Do you have any previous criminal convictions?

There is no obligation for a candidate to disclose criminal convictions if the sentence has already been spent. In fact, it is illegal for an employer to refuse employment to an individual because of a previous crime, unless, of course, it relates to the role in question (for example, teacher, childminder, a senior banking or financial role).

It is worth bearing in mind that criminal records checks are carried out by the Disclosure and Barring Service (DBS) for certain roles (e.g. working with children, healthcare etc.), but this should be undertaken by employers before the interview stage. These were formerly known as CRB checks.

What you can ask: ‘Do you know of any reasons why you may not legally be able to take this position?’