Insights

Interviews are one of the best ways for an employer to assess if a candidate has the ability to do the job and is likely to fit the company’s culture. Any interviewer should be aware that there are some questions that are off-limits, as they could be used to discriminate against the candidate. However, recent research from CV-Library has found that nearly three-quarters of professionals have been asked illegal or inappropriate questions.

When making conversation and establishing a rapport in an interview, it can be easy to stray into grey areas that seem harmless but are actually discriminatory and could leave the company open to litigation. So which questions are definitely illegal, which should you avoid to be on the safe side and what can you ask instead to get the information you need?

The Equality Act 2010

The Equality Act 2010 makes it illegal to discriminate against someone because of:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

These are called protected characteristics and any interview questions that ask about or speculate on any of these areas are definitely illegal.

The only exception would be if the job justifiably requires a person to have a particular protected characteristic in order to perform the role, referred to as a genuine occupational qualification (GOQ). For example, a women’s refuge for victims of male abuse may want to employ only women as counsellors.

Some examples and questions to ask instead

In many cases, simply by phrasing questions differently, you can find out the information you need to know (whether they are suitable for a role) without asking an interviewee to give you details you don’t need or want to know (information on their personal life).

Age

It is only ever acceptable to ask a candidate about their age if you need to establish that they are over a minimum age required for the role.

You should not ask:

• How old are you?
• How many more years do you see yourself in the workforce?
• When did you graduate?
• Aren’t you too old to cope with this job?
• Aren’t you a little young to hold a position of this level?
• Don’t you want to be earning more money than this at your age?

Instead, you could ask:

• Are you over the age of 18?
• What are your long term career goals?
• Do you have a degree or other qualification related to this role?
• How do you plan to cope with the challenges this role presents?
• What motivates you to do your role?

Disability & Illness

Unlike the other protected characteristics, disability is the only one you can use to positively discriminate, eg when a disabled person and a non-disabled person both meet the job requirements, you can treat the disabled person more favourably.

If a candidate has brought up their disability, you can ask questions around ‘reasonable adjustments’ that could be made to accommodate them.

Interviewers also need to be careful when asking questions related to illness. Asking a candidate to explain a gap in their CV, which may be due to long term sick leave, is acceptable, but you cannot ask directly about health conditions.

You should not ask:

• Don’t you think it would be difficult to do this job with your disability?
• How did you acquire your disability?
• How many sick days did you take last year?

But you can ask:

• Do you have any specific requirements in order to perform this job effectively?
• Are there any adjustments we could make to accommodate your disability?
• How might you be able to carry out XXX function of the job?
• Can you tell me briefly about this gap in your CV?

Marital Status or Children

Asking about someone’s children is a common way to make conversation, but best avoided in an interview setting (unless they bring up the topic themselves). You cannot ask a candidate directly about their marital status, plans for a family, if they are pregnant or childcare arrangements.

You should not ask:

• Is this your maiden name?
• When do you plan to get married?
• Do have any children?
• How old are your children?
• Do you plan to have children?
• What childcare arrangements do you have in place?
• If you went on maternity leave, would you come back to work afterwards?
• Will the hours of the job clash with your family commitments?

Instead, you can ask:

• Are any of your references or qualifications under another name?
• Do you have any current commitments which may affect your ability to do this job, or which may impact your attendance?’
• Are you available to work overtime on occasion? Can you travel?
• This job may require some overtime work on short notice. Is this a problem for you?
• What days/hours are you available to work?
• What are your long term career goals?

Place of Birth or Ethnicity

The only point in the recruitment process where you should ask about race is for anonymous equal opportunities monitoring. Otherwise, it should simply never come up at interview.

It can be easy to stray into dangerous areas, for example by asking about a candidate’s unusual surname, so interviewers do need to be careful.

You should not ask:

• What country are you from?
• Are you from the UK?
• Where were you born?
• How long have you lived here?
• Are you a UK citizen?
• Is English your first language?
• What is your native language?

Instead, consider asking:

• Are you eligible to work in the UK?
• Which languages do you fluently write or speak?

Religion

You may want to ask about religious belief in order to establish if there are likely to be any future scheduling conflicts around religious holidays, weekends or prayer time, but it is not acceptable to question a candidate about their religion.

Instead, you should explain the requirements of the job and the normal work pattern. If the candidate then brings up their religion to explain why they might be unable to meet those requirements, you may then go on to discuss any reasonable adjustments that you could make to accommodate them.

NB – the Equality Act specifies ‘lack of belief’ as equally protected

You should not ask:

• What religion do you practice?
• Which religious holidays do you observe?
• Will you need time off to pray regularly?

But you could ask:

• Can you work in the days/schedule required for this role?

Gender, Gender Reassignment or Sexual Preference

We tend to think of this area or discrimination as applying to women or gay or trans people, but you should be aware that male applicants can also experience discrimination. There should never be an assumption that a candidate’s gender or sexual preference could affect their ability to do the role.

Don’t ask:

• We’ve always had a woman/man in this role. How do you think you will handle it?
• How do you feel about managing men/women?

Instead, you can ask:

• What can you bring to this role?
• Tell me about your previous experience of managing staff.

Other questions to avoid

Criminal Convictions

You should not ask a candidate about previous criminal convictions. If the sentence has been spent, they are not required to disclose it. Any criminal records checks required for certain roles, eg working with children, should be covered by a DBS check and not at interview.

Location

It is very common to ask about commuting times or where people live at interview, as a candidate with a very long commute might be reluctant to stay long-term. However, it’s best to avoid making assumptions about how far people are willing to commute, as this varies wildly. Plus, if a candidate lives in an area typically associated with a certain ethnic group or social class, it could lead to discrimination issues.

Lifestyle Choices

You cannot ask a candidate about their consumption of alcohol, whether they smoke or use recreational drugs, or about similar lifestyle choices. Your company can obviously set rules for the use of substances or for professional conduct at work, but what an employee does outside of work is not the company’s business.

You should not ask about political affiliations or memberships of unions or other organisations, unless they are directly relevant to the role in question. This includes membership of the Territorial Army, Special Constabulary, St John’s Ambulance or other volunteer organisations. These should only come up if they impact on a candidate’s ability to commit time to the role.

Height or weight

Questions about a candidate’s weight or height are not actually illegal but definitely best avoided unless there are minimum or maximum requirements for the job.

CPR can help



If you’d like some tailored advice on the best way to interview candidates for property jobs, Collins Property Recruitment can help. Contact us on 020 7435 0309 or info@cpr.jobs.