Most businesses ask illegal interview questions – does yours?

“Are you married?”

At first glance, it’s a fairly innocuous question. And personally it’s not one I mind answering. I’ve spent the last 20 years saying “Yes, I am.”

But while it’s a perfectly common question to ask new acquaintances, and an eminently sensible one to ask a so-called ‘single’ you’ve met on an online dating site, it can land in you in hot water if you ask it of a job candidate.

Why? Because it’s likely to be illegal.

If you ask someone whether they are married and they are not, they could argue (if they don’t get the job) that you wanted to hire a candidate with what you perceive as a more ‘stable’ family background. Alternatively, if they are married and you don’t give them the job, they could argue that you wanted to hire someone with fewer family commitments.

Either way, you could face expensive legal action and see your hard-earned profits poured into the pockets of M’learned friends.

The issue of what you can or can’t ask in an interview was brought home to me earlier today when I read this piece on Yahoo! Finance. According to research that it cites, a majority of companies ask candidates questions that either do – or are likely to – break discrimination laws.

Sure, most of the time companies get away with it. But the ones that don’t can end up paying hefty fines. So how do you keep on the right side of the law?

The best advice I can give is to always make sure an HR professional – whether internal or external – is involved at every stage of your recruitment process. They should know what is legal and what isn’t and will be able to advise you.

If this isn’t practical or affordable, then you need to be absolutely sure that what may seem harmless questions don’t land you in trouble.

These are some of the top ones to avoid:- 

  1. Marital status, children and sexual orientation

None of these factors have a bearing on an individual’s ability to do a job and should never be asked. Discrimination on the basis of sexuality is simply illegal and asking about family life or commitments can give rise to the complications I mentioned earlier.

  1. County of birth, ethnicity and religion 

While it is perfectly fine to ask whether someone is entitled to work in the UK, you should not ask about their place or birth or religion. You can ask about ethnicity on an application form but this should only be for monitoring and must not be a factor in the hiring process.

  1. Age 

Because age discrimination laws are relatively new, this is an area that can easily trip you up. If you are interviewing an older candidate for example, never ask them how many years they think they’ll be able to give to the job. You could end up in court before you can say the word ‘retirement’.

  1. Arrests or convictions 

You can’t ask about these – and a candidate does not need to disclose convictions if they are ‘spent’. For some roles, such as a teacher or someone who works with vulnerable adults, candidates must undergo a Disclosure and Barring Service (DBS) check (these used to be known as Criminal Records Bureau (CRB) checks).

However, these must take place before the interview stage.

  1. Some others to avoid 

Most of these are common sense but don’t ask candidates whether they smoke, or belong to certain organisations or whether they are a trade union member or happen to be in debt. Only ever ask questions relevant to the role you are interviewing for.

As I said earlier, your best bet is always to have a dedicated HR professional involved when you hire new staff. But whenever you recruit, always keep the process fair, consistent for all candidates and avoid any question that can open you up to accusations of discrimination.

And before I forget, never, ever ask a female candidate if she is pregnant or planning to have a family. If you disagree, just do a quick search on the fines paid by those employers who did ask…

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