Although the purpose of an employment interview is to seek as much information as possible about a potential new employee, it is important to ensure that you are not asking questions that could land you in hot water.
A set of well-written and thought out interview questions can provide an effective tool for identifying whether a candidate will be the right fit for both the role and the company as a whole. Similarly, asking the right questions during the interview can help you to make a more informed hiring decision and increase the likelihood of successfully appointing the right candidate into the role.
While you do want to ask questions that will enable you to obtain as much information as you can about a candidate’s behaviour, skills and overall character, it is essential that the right questions are asked and that they do not cross the line by being unprofessional and/or unlawful. Given this, it is important to be aware of what would, or could, be classified as being an illegal or discriminatory interview question.
There are a number of pieces of legislation in Australia which make it illegal for particular questions to be asked on the grounds that they could be discriminatory. For example, the Fair Work Act 2009 and state/territory based anti-discrimination legislation prohibit employers from discriminating against prospective employees on the basis of the factors such as
- sexual orientation,
- marital status,
- family or carer responsibilities,
- social origin.
Some Australian jurisdictions do also have legislation in place which protects individuals against discrimination based on matters such as physical features and criminal records.
As an employer, it is important that you do not seek unnecessary and potentially discriminatory information from any applicant. By way of example, some interview questions that all employers should avoid asking of any candidate include:
- Are you pregnant?
- Are you planning on starting a family anytime soon?
- How old are you?
- Is English your first language?
- Were you born in Australia?
- Do you have any medical conditions?
- Are you married?/Are you seeing anyone?
- Do you have children?
It is important to note that should an unlawful or discriminatory interview question be asked, and the information obtained from the response is used as the basis of rejecting the candidate’s application, the candidate may choose to pursue action through bodies such as the Fair Work Commission or the Australian Human Rights Commission.
What can you do if personal information is genuinely required to enable an assessment of the candidate’s capacity to perform the role?
As a general rule, it is not lawful to request information from a candidate that pertains to their personal life or attributes, particularly where the information requested does not directly relate to the role for which they are being considered. However questions that do genuinely pertain to the applicant’s capacity to perform the inherent requirements of the role may be asked, provided that the manner in which they are asked is reasonable. In such circumstances, it is essential that the interview questions be phrased correctly and that they focus only on the specific inherent tasks and requirements of the position, rather than on the characteristics of the candidate themselves.
- A candidate may be asked to confirm their residency status for the purposes of enabling their capacity to work full-time hours to be determined by asking a question such as “do you have the appropriate rights to work for this position?” or “This is a full-time position, is there anything that would prevent you from working 38 hours per week?”
- If the role requires travel, you can ask a question such as “this job requires frequent overnight and interstate travel. Is there anything that would prevent you from being able to fulfill this requirement?”
- If the role is physically demanding, instead of asking “Do you have any injuries or health issues?”, rephrase this question to “The role requires frequent heavy lifting and manual handling. Is there anything that would prevent you from performing this requirement safely?”
In all cases, it is important to consider how you phrase the question to a candidate to ensure that you don’t have a potential discrimination or adverse action claim.
If you require HR Advice on any matter, including recruitment, please contact the team at HR Advice Online at HR Advice Online at [email protected] or on 1300 720 004.
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.