It’s actually illegal to ask these 9 questions in a job interview

Looking to hire new people for your business? Then it’s essential to get the recruitment process right.

Part of this, of course, will involve interviewing new candidates for the position. It’s a long and at times tiresome practice, but it’s a vital one to do properly to help you find new talent and expand your business further.

That being said, when it comes to certain interview questions, you need to be careful with your words. 

Some job seekers will tell you that they hate certain questions (we’ve probably all heard, “are you a team player?” or “what is your greatest weakness?”). But as annoying as they might be, they’re perfectly fine to ask in a legal sense.

But, there are specific questions that are illegal to ask during interviews due to being potentially discriminatory. As an employer, it’s essential for you to conduct interviews that are not only effective but also compliant with legal standards.

To help avoid you landing in any legal troubles, we’re going to guide you through nine interview questions that you should avoid.

“When were you born?”

A candidate’s age is not something you need to know this early on in the interview process. Worse still, asking this question is illegal under the Equality Act 2010. The only scenario where you can ask for a date of birth at this point is if the candidate must be a certain age to do the job, for example selling alcohol at a bar.

Asking this question poses the risk of potential age discrimination. Half of adults over 50 in England have experienced age discrimination in the last year, with 37% of reported cases happening in the workplace. Discrimination isn’t something you should encourage in your business operations or organisational culture, so make sure to avoid this question when interviewing.

 “Are you a UK citizen?”

This question could fall under racial discrimination. Other similar questions may include “What’s your native tongue?”, “Where were you born?” or “Where are your parents from?”

Asking this during the interview question could potentially breach the Equality Act. While employers are required to confirm that a candidate is legally allowed to work in the UK, asking about nationality or ethnic background during an interview can create the impression of bias and could be considered discriminatory.

So, instead of asking these kinds of questions, you should follow legal procedures for carrying out a right to work check. This involves requesting specific documents, such as a valid passport, a certificate of British citizenship or biometric residence permits.

“Do you drink/smoke?”

Whether you agree with someone’s lifestyle choices or not, it really isn’t any of your business. 

While certain industries, such as aviation, rail and shipping, are permitted to carry out random alcohol and drug tests, it’s inappropriate and often illegal to ask candidates about their drinking or smoking habits during an interview.

However, you can establish clear workplace policies surrounding alcohol and smoking, such as prohibiting alcohol consumption during work hours or creating designated smoking areas. These policies should be outlined in your staff handbook and communicated after the hiring process, ensuring that they align with legal and professional standards.

“Would your disability make it difficult for you to carry out this job?”

Disability discrimination is also a huge no-no, and asking a question like the one above is illegal under the Equality Act.

The only times when it’s appropriate to ask about a candidate’s disability are if it relates to:

• Asking if they need reasonable adjustments during the application or recruitment process (e.g. sign language interpretation, extra time on test sessions, providing wheelchair access for the interview).
• Equality and diversity purposes (e.g. asking how open they are about their disability), and this data must be processed in an appropriate manner, rather than be used for active decision-making between candidates.
• Assessing whether an applicant can carry out an activity essential to the role (e.g. heavy lifting or physical work).
• According to research by HR Brew, 25% of disabled candidates reported that they had experienced discrimination during the interview process. Therefore, you should ensure that any questions surrounding disability are appropriate and don’t come across as intrusive, irrelevant or at risk of bias.

 “How many sick days did you take last year?”

Asking about past sick days in a job interview is inappropriate and unlawful and asking about them could be seen as an indirect way of determining whether an applicant has a disability or ongoing health issues. Using that information to make hiring decisions could lead to discrimination claims, particularly if someone isn’t hired because they took sick leave for a disability-related reason.

Moreover, health data is classified as “special category data” under the General Data Protection Regulation (GDPR), so asking about sick days at this stage could breach GDPR rules if it leads to unnecessary collection of health information without proper reason.

“What are your childcare arrangements?”

It’s illegal to ask candidates about childcare arrangements, as they don’t directly relate to the job that they’re applying for and it can lead to claims of gender discrimination.

Such a question implies that you might not offer the candidate the job based on any future carers’ leave requirements, or that you might have a bias against those likely to take maternity or paternity leave.

Questions about someone’s family arrangements are personal and can also be used to determine someone’s sexual orientation – something else which isn’t necessary to know.

However, if you’re concerned about a candidate’s ability to attend your workplace for as many days as required of the role, you can clearly state such requirements. But, be aware under new legislation, an employee has the right to make a flexible work request from day one in their new role.

It’s important to provide information about your workplace flexibility policies – such as remote work options, flexible hours or parental leave. That way, candidates understand what support may be available to them if they accept the role.

“Have you ever experienced mental health problems?”

It isn’t lawful to ask candidates questions about their mental health as once again, this could breach the UK’s Equality Act.

If a mental health condition has a substantial and long term effect on a person’s ability to carry out everyday activities, then there are protections in place under disability discrimination laws. This includes conditions such as depression, anxiety and bipolar disorder.

Asking a candidate about their mental health could lead to disability discrimination if the employer is suspected to have used the information to judge that candidate’s suitability for the role. 

As with the previous question about physical disabilities, asking questions related to mental health is only appropriate to determine reasonable adjustments, monitor diversity within the organisation or assess whether a candidate can carry out certain core functions.

“Are you a member of any trade unions?”

This question is illegal because it can lead to unfair treatment and discrimination based on trade union membership or activities.

Under the new Employment Rights Bill, employees have the right to join and participate in trade union activities without fear of discrimination or retaliation. This protection applies to both current employees and prospective job applicants. Employers are not allowed to discriminate against candidates based on whether they are trade union members.

Asking about union membership during an interview can suggest that the employer might make hiring decisions based on the applicant’s response, which could violate these legal protections.

“How does your religion influence your work ethic?”

Asking about a candidate’s religion implies that the employer may judge them or make unfair assumptions based on their beliefs, which could lead to discriminatory decisions in the hiring process.

Discriminating against an applicant because of their religion, or making hiring decisions based on religious assumptions, could lead to legal action. By asking questions like this, you risk violating the candidate’s right to be considered purely on their qualifications, experience and ability to do the job.

Even if the question isn’t intended to be discriminatory, asking about religion can create an impression of bias or favouritism. It suggests that you might expect certain work behaviours or ethics based on religious stereotypes, which can alienate applicants and harm your company’s reputation.

Overall, it’s important to be mindful of the questions you ask, as this will help you maintain a fair and legally compliant recruitment process. When interviewing, you should focus on a candidate’s qualifications, skills and suitability for the role, as this will protect your business from potential legal issues as well as foster a diverse and inclusive workplace culture.

Remember to keep the conversation centred on job-related topics and avoid discriminatory inquiries. That way, you can ensure a positive experience for all candidates.