A job interview is integral to the recruitment process and provides an opportunity for the employer to ask questions, check credentials and determine a prospective employee’s suitability for a position. It also provides opportunities for candidates to find out more about the role and the organisation and to assess their interest in the position.
Naturally, both parties want to find the ‘right fit’, however the employer is largely in control of the interview process and might go about finding the right person in the wrong manner.
By asking a candidate unlawful questions during the interview process, employers risk breaching laws aimed at protecting individuals against discrimination in the workplace.
So, what are unlawful questions?
When interviewing a candidate for a position, the primary focus of the questions should be to assess the applicant’s inherent ability to perform the key functions of the role.
Employers should avoid asking questions, the answers to which should not determine the success, or otherwise, of a candidate’s application because they do not affect his or her ability to carry out the duties required of the role.
These include questions about age, gender, sexual preference, ethnicity, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or social origin.
Even seemingly innocent questions (such as those that might be asked during the course of social conversation) could be considered unlawful during a formal interview and may result in discrimination action being brought against you.
Some examples of questions that should not be asked in an interview are:
- What is your religion?
- Where were you born?
- How do you manage work with three children?
- How old are you?
- Does your disability prevent you from carrying out your job?
- Are you working at the moment?
- Have you ever made a workers’ compensation claims?
These questions are unnecessary when determining an applicant’s ability to carry out the duties required of the role and should be avoided. Deciding that an applicant is unsuited for the position based on an answer to one or more of these questions may result in discrimination action.
Asking the right questions
Potential claims for discrimination can be minimised by re-thinking your approach to how questions are asked and having a detailed job description to refer to during the interview process. This helps keep the interview on track and ensures only the essential requirements of the position are addressed.
It is a good idea to implement a set of standard interview questions that focus on the key skills and requirements of the position. This may include asking applicants to demonstrate how their skills and personal qualities make them an ideal choice for the role. An effective way to achieve this is to request examples of how the applicant has achieved certain outcomes or reacted to particular situations in previous roles. For example, you could ask, “please describe how you managed an irate customer during your time as service representative with XYZ”.
Avoiding potential workplace discrimination starts before the recruitment process.
Framing questions appropriately to minimise potential action for unfair discrimination and to give candidates an opportunity to demonstrate whether they can perform the job requires sound procedures and ensuring those involved in the recruitment process are aware of their obligations.
This article is general information only and does not take into account your specific circumstances. You may not rely on it as legal advice and it does not create a solicitor-client relationship between you and Douglas Cheveralls Pty Ltd. If you or someone you know wants more information or needs help or advice, please contact us.