Keeping It Legal – Interview Questions You Are Not Allowed To Ask Your Candidates

When job vacancies arise in your workplace, you are obviously looking for the best staff who will fill those roles and take your company forward. Whether you are recruiting graduates for your graduate schemes or you are employing students and young people for summer jobs and part time work; the job role is irrelevant. You need to know you are awarding that job to the best candidates.

By the time you get to the interview stage, you’ll have done your homework and written that fantastic job ad that has really pulled in applications from candidates who seem to be a good match for your role. You will have analysed the applications and read all the CVs and whittled these down to a few candidates who you now want to speak with face to face in an interview.

In the previous article, we gave a list of suggestions on what not to do and what not to say to candidates in an interview. Pointers so that your candidate doesn’t make a sharp exit through the door, never to be seen again, just because of something you’ve said.

This article is also about what not to say in an interview, but this time, we’re dealing with legalities. Yes, of course you want to find out as much as possible about this person you are thinking of bring into your workplace. And these questions can be asked innocently whilst you are trying to get to know your candidate better and make polite conversation. But, did you know that some of the questions you might want to ask are discriminatory and, therefore, sometimes illegal?

If you really want to find out something in particular about your candidate, there is often an alternative question you can ask which might draw out the answer you are looking for.

Below is a list of questions you shouldn’t ask your candidates when you are interviewing them for one of your vacancies:

Don’t ask, “How many sick days did you use at your last job?”

Questions about disability and health can be a tricky area. If your student or graduate candidate has indicated on their CV that they have been away from university for a significant amount of time – perhaps they have needed to repeat a year – then it is okay to ask them about this. To ask about random sick days here and there, or to ask directly about health issues, however, is not acceptable.

The 2010 Equality Act gives you guidance with regards to candidates with disabilities. Don’t land yourself in hot water by inadvertently entering the world of disability discrimination with the wrong questions. You can ask if your candidate has any specific requirements in order to perform well and carry out their role effectively. This could relate to adjustments that they may need to be made in your workplace for wheelchair access, for example.

Don’t ask, “How old are you?”

Age discrimination is another area where you don’t want to find yourself in hot water. It is illegal to discriminate about someone in the workplace because of their age and this can apply to both young and older people.

In the case of young people, you shouldn’t be implying to your candidates that their age may make them unfit for the role. For example, if your candidate is a student or school leaver, it would be age discrimination if you implied they wouldn’t be mature enough to be committed to the role on offer or to deal with the challenges thrown up by the role.

I have written in the past about the notion of the job for life disappearing from work culture but you should be careful not to discriminate against students, graduates or school leavers because you think they might move on soon after you employ them.

Likewise, for older people, you shouldn’t imply that they might not be able to do the job because of their age for health and fitness reasons. Or that they might only stay in the job for a short while because they are due to retire.

If there are any legal age limits involved with the role you are advertising – serving alcohol unsupervised behind a bar, for example – then you can ask, “Are you over 18?” If you are concerned that your younger candidate might be thinking about moving on in the not too distant future, ask questions like, “How do you plan to develop your career with us in the future?” There are also lots of things you can do to engage new staff so that they stay with your company longer.

Don’t ask, “What is your religion?”

You don’t want to be accused of religious discrimination when interviewing a candidate so never ask directly what their religion is. Different religions have their own festivals and holidays and, depending on how devout your candidate is, they may want to observe certain days.

If you are curious about dates for religious holidays – and if you want to know whether your candidate might need time away from the workplace – you can ask whether your candidate is able to work all the hours required for the role.

Don’t ask, “How many children do you have? Are you planning to start a family?”

You are heading down the path of sexual discrimination if you ask your candidate in interview about how many children they have or if they are planning to start a family anytime soon.

The question implies that you might not offer that person the job because you think they might need maternity or paternity leave or you might have to take time off work if childcare arrangements have changed. Incidentally, asking your candidate about their childcare arrangements is also off limits.

Depending on the type of job you are interviewing your student or graduate candidates for, you can mention the fact that the role may require flexibility with hours and maybe overtime. Then it is okay to ask your candidate whether they are able to work longer hours at short notice.

Don’t ask, “How often do you go to the pub?”

You might well be genuinely curious about the student lifestyle or you might just be making small talk, trying to get to know your candidate better.

Finding out what they get up to outside of university or outside the workplace might seem like a good way to get a more rounded picture of your candidate but remember, you are interviewing them for a role within your workplace.

What they do outside of the workplace is exactly that – outside. It is illegal to ask your candidate whether or not they drink alcohol, whether they smoke or whether they use recreational drugs in nightclubs or at home, for example.

If you have rules within the workplace about alcohol consumption or smoking and smoke breaks, this is fine because this is in working time.

Don’t ask, “Are you a member of any political organisations or clubs?”

This is one of those areas not just about your candidate’s political beliefs. Also steer clear of questions about membership of any campaign groups or pressure groups. Any volunteer groups they might be a member of such as St. John’s Ambulance or the Territorial Army, for example.

Again, you could be genuinely curious; using the question as a route to getting to know your candidate better. And, for some roles, it could be beneficial to ask certain questions like this because they are relevant to the particular role.

You could word your question by asking the candidate whether they are part of any organisations that are particularly relevant to the role they are applying for.

But, for many roles, it isn’t relevant to ask these questions. As with spare time questions, these questions don’t determine whether or not a candidate can carry out their job effectively.

Don’t ask, “Where do you live?”

Again, this is another of those questions that you could be asking perfectly innocently in an effort to break the ice during the interview and make small talk with your candidate. Asking a candidate where they live, however, could be deemed discriminatory because they might live in an area that has a high density of people with a particular ethnic background. Or it could be a neighbourhood that has a reputation due to high crime rates, for example.

Another reason why you might be asking about where your candidate lives is because you are curious about how long their commute to work might be. One of the best ways to ask about this is by asking, “Are you able to begin your shifts on time?”

Especially if you are interviewing graduates for career roles, those candidates could well be thinking of relocating anyway, just to be closer to work. Commuting times are also viewed differently by individual people. Some people enjoy a longer commute of an hour or more because they might enjoy the ‘me time’ whilst on the train or driving.

Whilst you might think their journey time could pose a problem, for your candidate, it might be an ideal journey time.

Don’t ask, “Where were you born?”

You might be genuinely curious as to your candidate’s ethnicity, purely out of interest, but you shouldn’t ask them where they were born or whether English is their first language. Similarly, if they have an unusual name that you have never come across before, do not ask your candidate which country they were born in.

Obviously, you want all your employees to be legal employees so you are allowed to ask your candidate if they are eligible to work in the UK. If you want to know more about their language skills, you can ask them which languages they speak and write fluently. After all, employees with more than one language are a bonus to many workplaces.

Don’t ask, “Are you married?” “What are your sexual preferences?”

Asking someone about their marital status or what their sexual preferences might be are off limits. Again, these questions don’t help you decide whether or not your candidate is capable of doing the job they are applying for.

You could be asking about a person’s marital status out of curiosity but the question is actually discriminatory. For example, favourable stereotypes that a married person may be more mature and settled and so better at their job. Or young single people could be viewed as being more suitable for some roles because of their flexible or irregular hours.

Don’t ask, “How tall are you?” “How much do you weigh?”

There are going to be certain requirements for some jobs that might require a person to be above a certain height or the job could be physically demanding, for example but avoid direct questions about a candidate’s height or weight.

These types of questions are discriminatory unless you are interviewing for a role which is exempt. The safe operation of some machinery might have height or weight restrictions for operators, for example.

Don’t ask, “Have you ever been arrested?” “Do you have any criminal convictions?”

If a candidate has been convicted of a crime and served a sentence or paid a fine in the past, they have served their time and it is discriminatory if you ask them about this.

Of course, there are lots of job roles out there where you might be interviewing candidates for positions where they might be in contact with children or healthcare roles, for example. For these types of jobs, you can do a DBS (Disclosure and Barring Service) check. The rules are different for Scotland and Northern Ireland. Further information about DBS checks in all regions can be found here.

About These Interview Questions

This article is meant purely as a general guide to the types of questions where you could be being discriminatory when you ask them. Further information can be found on the website: preventing discrimination in recruitment. There is also more detailed information about legislation in each of these areas in the Equality Act 2010.

If you are currently looking to recruit students, apprentices or graduates to roles within your workplace, why not place an ad with E4S and reach a targeted audience?