Wake-up call: What you can – and can't – ask at interview

28 April 2011
Wake-up call: What you can – and can't – ask at interview

Questions about childcare arrangements, living arrangements and plans to get married or have children should all be avoided when interviewing potential employees. Legal expert Hayley Prescott explains

The Problem
Lord Sugar has been in the news again recently, saying that he believes that women should be honest about their plans for a family at the interview stage. What should I take into consideration when interviewing potential employees?

The Law
The Equality Act 2010 outlaws discrimination and harassment in relation to nine specific "protected characteristics", including marriage and civil partnership, pregnancy and maternity, and sex. Its provisions consolidate those of the previous legislation, so previous case law is still relevant.

The act states that an employer must not unlawfully discriminate against or victimise a person in the arrangements it makes for deciding to whom to offer employment, the terms on which employment is offered or, crucially here, by not offering a person employment. "Arrangements" is broadly defined, but covers the job interview stage.

The Equality and Human Rights Commission has produced an Employment Statutory Code of Practice, which came into force on 6 April 2011. The code provides practical advice to employers about how to interpret the Equality Act.

Expert Advice
There is no obligation on either women or men to be honest about either their existing family life, or their plans for a family, at interview, and employers should not ask potentially discriminatory questions at interview.

It is also easy to make assumptions that may be based on stereotypes and even prejudice and, if allowed to influence decisions about whom to employ, could lead to claims of discrimination.

For example, an employer could assume that all women of childbearing age either have, or plan to have, children. Lord Sugar has justified his comments by explaining that if women are honest about how their childcare arrangements work, and how they will not interfere with the job, it will make employers more likely to employ them, rather than assume that they will not be able to carry out the role because of family commitments.

Interview questions should be based on the job description, person specification and application form. Irrelevant interview questions that relate to "protected characteristics" should be avoided, as this could lead to discrimination. For example, questions about childcare arrangements, living arrangements, plans to get married or have children should all be avoided.

If a woman is pregnant, she is under no obligation to disclose that information at interview. If such information is disclosed, an employer should not take it into account when deciding whom to employ.

Check list

â- Ensure that everybody who is involved in the recruitment process has had appropriate training on your equality policy (if you have one) and its application to interview techniques.

â- Document the entire recruitment process, including the interview itself. Prepare the questions beforehand, and minute the interview. Make a note of any discussions or decisions following interviews.

â- Try and ask all candidates the same questions, and avoid personal questions.

â- If personal information is volunteered by a candidate, take particular care to not allow yourself to be influenced by that information.

An employer's duty not to discriminate extends further than to just its own employees, and discrimination claims can be very costly and a huge inconvenience. Ensure that appropriate policies are in place, and that employees are adequately trained in how to follow them.

Hayley Prescott is a solicitor at Charles Russellhayley.prescott@charlesrussell.co.uk

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