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Our guide to illegal interview questions

posted by Christinap 13/08/2018 0 comments

We know that an interview can be a daunting task, no matter how well prepared a candidate is. But did you know that there are some questions that a prospective employer can’t ask in an interview? Generally, questions that seek information beyond what is relevant to the role are not acceptable and employers are also not allowed to ask candidates to provide information about their age, gender, ethnicity or sexuality.

It is also unlawful to discriminate against or refuse to employ a prospective employee on the basis of their physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.  But it is important to note that there are limited occasions when discrimination may be allowed if it relates to the requirements of the position.

In addition, different treatment is sometimes legal (and necessary) to enable a particular group of people to achieve equality with others, including gender quotas in the workplace and measures to reduce the discrimination or under-representation of specific ethnic or cultural groups.

However, it is unlawful for employers to discriminate against candidates on the basis of the attributes outlined above, and if they do, candidates may be able to take legal action against the company. We’ve highlighted 4 questions below that are illegal or potentially discriminatory and suggestions for what you can be asked instead:

1. How old are you?

Unless your age directly relates to the job requirements (such as requiring proof of age to work in a licensed venue or proof of license to drive a delivery van). However because these documents contain information regarding the employee’s age and other protected attributes, such a request may be discriminatory. An employer should ask for this information/documents after an offer of employment has been made (or make any offer contingent on the documents being provided).

2. How do you juggle work and looking after your children?

This may suggest that a candidate’s family responsibilities are relevant to the decision to employ them. The family status of a prospective employee should never be used to discriminate against them. A better question would be to ask if the candidate is able to commit to working the following hours, etc.

3. Are you currently working?

Again, it is illegal to discriminate against a candidate because they are employed, unemployed, or on benefits. However, sometimes this question could be a legitimate way to determine when an employee would be able to start in the role. In this case, it would be better framed as “what date are you able to start”

4. Have you had any past injuries/illnesses?

This question relates to a protected attribute (disability) so is also unlawful. Depending on the circumstances, however, this question could be relevant if it is specifically aimed at asking about an illness or injury that would directly relate to the ability to perform the inherent requirements of the role. This question could be better framed as “is there any reason you might not be able to complete the duties required for this role?”

For more information or if you have any questions, don’t hesitate to contact us on 03 9500 2797 for a confidential chat.

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