How to avoid legal pitfalls when interviewing

Interview questions not to ask

Although it is natural to want to find out as much as possible during the interview, you don’t have a completely free rein. Legally, there are some questions that you can’t ask. “The thing that you have to be careful about is that you don’t discriminate,” explains Alexandra Davidson, a partner with the employment team at law firm Berwin Leighton Paisner.

There are three ways in which your questions could be discriminatory:

Sex

Obviously you should avoid sexist comments but you should also avoid questions such as “Are you planning to start a family?” If you refuse to employ someone because they say that they are, you are being discriminatory and are liable for a claim against you.

Disability

If the candidate discloses a disability, you can’t use it as a reason not to employ them unless it is justified. “Somebody who’s blind obviously can’t be a bus driver but there’s no reason why they can’t be a receptionist. If it will only take small adjustments to enable them to do the job, then you will have to make them,” explains Davidson.

Any questions relating to disability have to be carefully worded. They need to centre on how you can enable them to do the job with the disability rather than why it would exclude them.

Race

You can’t discriminate on grounds of race. This covers both ethnic background and country of origin. “The chief pitfall is in stereotyping people,” explains Davidson.

Overall the rule is “Only ask questions which help you make a decision about whether you are going to appoint them for the job or not.” If you are asking a discriminatory question to help you decide whether to employ the person or not, then it is unlawful. If you are not asking the question for that reason, they why are you asking it at all?

Contractual agreements

On a more general note, you should also be careful that you don’t make any promises in the interview that you can’t keep. If you offer someone a job along with all sorts of benefits, and they accept – you can’t then change the offer because you realise that you can’t afford it.

“Be cautious with your wording and don’t promise the earth unless you’re going to give it. If you offer them the job and they say, “great, I’ll start on Monday”, that’s a contractual agreement. Just because it’s verbal, it doesn’t mean it’s not binding,” cautions Davidson.

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