HR & Management

"What do you think about interoffice dating?" and other illegal interview questions to avoid

22 min read

30 January 2019

Features Editor, Real Business

Even for the most seasoned hiring managers, interviews can be socially awkward and uncomfortable. To ease the tension, it's tempting to descend into informal behaviour, but it can lead to breaking the law. Instead, follow these steps to maintain the best ethical interview practices possible.

The world of work is changing –  and changing fast. Employees are becoming increasingly ‘woke’ about their rights, including how they should be treated by employers throughout their time at a company.

Increasingly, the importance of how they are treated starts at the point of recruitment, including during the interview stage.

Employers must ensure they maintain an ethically sound stance during interview stages. This includes what they are allowed to ask, and say, and what they’re not.

Marketing recruitment agency, Aaron Wallis is here to save employers from themselves by highlighting what constitutes as unethical practice during interviews.

1. Unconscious bias

Are you bringing candidates to interview stage because they’re similar to you? If so, this is something known as “unconscious bias”.

This is where an employer might naturally favour a candidate that has a similar personality, background or attributes to their own.

These ‘similarities’ can include people with similar values and social backgrounds, including the way someone looks or talks.

How to sort it

The way employers can stop this from happening is if they constantly question why they’ve brought the candidate to interview stage. They should be critical and self-reflective, and constantly query the candidate’s skill-set and experience for the role in question.

2. Direct or indirect discrimination

Direct discrimination is a more obvious example of discrimination during the interview stage. This includes rejecting candidates due to their age, gender, religion or sexual orientation.

But in reality, the list is endless and discrimination can extend to anything that the person can be defined by. If you engage in any form of direct or indirect discrimination, your company could be under threat of being liable to the UK Government’s Equality Act of 2010.

How to sort it

To stop this from happening, employers need to explain why they’ve turned down a candidate. Doing so is crucial to ensure that your company’s reputation isn’t damaged on a social level as well as a legal one.

However, indirect discrimination is a more insidious form of discrimination as it’s harder to spot, and therefore harder to combat. So how can you spot and stop it?

3. What does indirect discrimination look like?

Indirect discrimination can include loopholes in your company’s ‘best practices’ guidelines, where discrimination occurs due to the absence of regulatory protection.

This can include having a standardised policy for everyone in your company that indirectly (and unintentionally) discriminates against individuals.

Blanket rules don’t always protect staff

Whilst the intention to create ‘one rule for all’ is often employed to encourage equality and uniformity within workplaces, they can sometimes have an adverse effect, and make some employees feel discriminated against.

For example, failing to provide fridge space for employees with religiously based dietary requirements or not providing full disabled accessibility can constitute forms of indirect discrimination.

It’s worth remembering that candidates from minority backgrounds may have their own checklists in terms of company culture and policies. If they don’t see the safeguards they want in place, they may not take the job even if they’re offered it.

How to sort it

To stop indirect forms of discrimination seeping through blanket form regulations within workplaces, employers must also employ flexible policies that take in diverse scenarios.

The way they can do this is by bringing on senior staff who represent all of the diverse groups within the office to ensure every group is protected when devising company legislation.

Interview questions: What you’re not allowed to ask

It can be tempting to start the interview process with casual small talk in order to avoid any awkwardness.

However, being too relaxed about this could lead you to ask questions that could breach the UK 2010 Equality Act. Here is a handy list of every single interview question that is definitely illegal (but you are probably asking anyway)–courtesy of Aaron Wallis’ associate director Simon Bonner.

Gender

Illegal: “We’ve always previously had a man/woman do this job. Do you think you will be able to perform as well as they did?”

Leave gender out of the question entirely as it can come across very, very, very rude. Instead you should inquire about the applicants ability to handle the job but do not ask how being a man or woman could affect it. Alternatively ask “What do you have to offer our company?”

Illegal: “How do you feel about supervising men/women?”

Although this question may have effect on the job role available, it is not acceptable. Most individuals do not have issues working with the same or opposite sex and you may seem extremely judgmental for even bringing it up. Instead ask the interviewee “Tell me about your previous experience managing teams?”

Illegal: “What do you think of interoffice dating?”

Interoffice dating can be distracting where it can divide and break up teams and further cause a number of other problems in the workplace. Asking questions such as this can also make assumptions about the candidate’s marital status and could even been interpreted as you trying to make a move on the candidate (even though I am sure this is not what you have in mind!).”Have you ever been disciplined for your behaviour at work?” would be a more appropriate question.

Illegal: “Have you been through (or are you going through) a gender transformation process?

An unbelievably rude question and unlikely that you’d ever ask this during an interview.  However a HR professional from a major manufacturing company once asked this of one of my candidates and was surprised when they received soon after a letter from the candidate’s solicitors suing them!  Suffice to say, it is illegal to ask.

Health

Illegal: “Do you smoke or drink?”

As a generalisation, most employers will want to avoid hiring someone who has a drinking problem or whom will take multiple smoke breaks throughout the day – it’s even a concern for insurance. You can find out if they’ve had trouble with health policies in the past by asking a question such as “Have you been disciplined previously for violating company policies forbidding the use of alcohol or tobacco products?” instead of asking a direct question.

Illegal: “Do you take drugs?”

This question provides a simple confusion of terms where your interviewee may think you’re asking about prescription drugs – which itself is a question that is off-limits. Make sure that you specify that you want to specifically know about illegal drug use instead by asking “Do you use illegal drugs?”

Illegal: “How tall are you?” or “How much do you weigh?”

Although these are not essential requirements to a sales role, these personal questions must not be asked under any circumstances. If it necessary that you find out how tall or how much they weigh (for whatever reason that may be) its best to ask them a question upon the basis of “Are you able to reach items that are on a shelf that is five feet tall?” or “Are you able to lift a box weighing up to 40 pounds?”

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

Of course no one wants to employee a candidate who takes a day of here and there at their own leisure but even the most dedicated of dedicated workers get sick every now and then. Take a look at missed days as a whole to measure the candidate’s commitment by asking a question such as “How many days of work did you miss last year?”

Illegal: “Do you have any disabilities?”

Physical or mental abilities can affect a candidate’s ability to do a job but it’s absolutely critical that you avoid asking them about them. Instead, you should ask the applicant if they can handle what is required for example “Are you able to perform the specific duties of this position?”

Illegal: “Have you had any recent or past illnesses or operations?”

Illness isn’t something that most people can help however it’s understandable that gauging commitment is important. As an alternative you can ask “Are you able to perform the essential functions of this job with or without reasonable accommodations?” 

Marital

Illegal: “Is “Smith” your maiden name?”

This question may seem innocent and simple, but it’s most certainly off-limits. A woman’s marital status isn’t something that’s required to be shared with employers. Instead you can verify whether if she has gained experience using any other names by asking a question such as “Have you worked or earned a degree under another name?”

Illegal: “Do you have or plan to have children?”

The concern in hand here is that family obligation will get in the way of work hours, motivation and focus. Do not make assumptions on family situations alternatively find out directly what the candidates availability is by asking “Are you available to work overtime on occasion? Can you travel?” instead.

Illegal: “Do you have kids?”

It is not your place as an employer to ask this, but you may be fortunate enough that the candidate volunteers to give this information to your anyway. You can ask preferably “What is your experience with “x” age group?”

Illegal: “Who is your closest relative to notify in case of an emergency?”

This may come as a surprise to you as it is not obviously offensive, but this question does make assumptions about a potential employee’s personal life. They may not be close to any of their relatives and would instead prefer to list a friend or caretaker. Therefore ask a question along the lines of “In case of an emergency, who should we notify?” instead.

Illegal: “What do your parents do for a living?”

This question can potentially reveal a great deal about a candidate but it does not however reveal their future performance in a position. If you are trying to find out if your candidates family has traditionally worked in that industry you can ask “tell me how you became interested in the “x” industry.” This may help provide clarification and greater understanding on a candidate’s family background.

Religion

Illegal: “What religion do you practice?”

Religious practices affect weekend work schedules but you must refrain from asking directly about a candidate’s belief. Instead ask the availability to work weekends for e.g. “What days are you available to work?”

Illegal: “Do you belong to a club or social organisation?”

This question reveals political and religious beliefs that candidates are not required to share such information with prospective employers. This question has little relation to a candidate’s ability to do a job. Instead ask a question in which its wording focuses on work for e.g. “Are you a member of a professional or trade group that is relevant to our industry?”

Nationality

Illegal:  “Are you a UK citizen?”

Although this may seem like the simplest and direct method to find out if an interviewee is legally able to work, this direct question must be avoided. Instead of inquiring about citizenship, you can question whether or not the candidate is authorised for work by asking a question such as “Are you authorised to work in the UK?”

Illegal: “What is your native tongue?”

Although finding out about a native language may seem like a good way to find out about candidates fluency some applicants may be sensitive to common assumptions about their language. As an employer it’s not your concern on how an applicant became fluent in a language, but just that they are. Alternatively you can ask “What languages do you read, speak or write fluently?”

Illegal: “How long have you lived here?”

It’s vital that you do not ask about a candidate’s residency in the country or region even if familiarity with local culture is important to the sales position. Instead you can ask “What is your current address and phone number? Do you have any alternative locations where you can be reached?”

Age

Illegal: “How old are you?”

Whilst this seems like a simple question, it is in fact loaded by discrimination troubles. However to be safe, do ensure that the candidate is legally old enough to work for your organisation. Conversely you can ask “Are you over the age of 18?” Especially if they look like a particularly young candidate.

Illegal: “How much longer do you plan to work before you retire?”

You may not want to hire an older worker who will retire in a few years but you cannot dismiss an applicant for this reason. Instead, find out what the candidates plans are for the future as they may plan to work for a number of years. You can ask this alternative question instead: “what are your long-term career goals?”

Other gems

Illegal: “How far is your commute?”

Hiring candidates who live close by may be desirable however it is discriminated to choose candidates based on their location. Instead, you should find out their availability by asking questions such as “Are you able to start work at 8am?”

Illegal: “Do you live nearby?”

Once again you cannot discriminate based on location – even if it could potentially mean that a prospective candidate would possibly have to move to a different area to make it possible to travel to work every day. Questions such as “Are you willing to relocate” should be used to find out this information. 

Illegal: “Have you ever been arrested?”

Within the more “sensitive” sales positions, like those who deal with money, it may be necessary for you to find out about potential employee’s legal fortitude. However, ensure that you only ask directly about crimes that relate to your concern by asking questions such as “Have you ever been convicted of “y” (fraud, theft etc)?” 

Illegal: “Were you honourably discharged from the military?”

Yes, a bad military record can be illuminating however you mustn’t ask about this. Conversely ask about the candidates experience and they may actually volunteer this information on their own accord. Questions such as “tell me how your experience in the military can benefit the company”, “what lessons did you learn in the Army”, etc. are acceptable. 

Illegal: “Are you a member of the Territorial Army/Special Constabulary/Other Volunteer Force?”

If an employee is lost due to military service it can be extremely disrupting for a team, but it is vital that you don’t discriminate based on assumptions of a candidates upcoming military commitments. Instead, find out what their plans are for the short term by asking “Do you have any upcoming events that would require extensive time away from work?”

For further advice, check out Aaron Wallis’ advice sheet on Equal Opportunities at Work for Small Businesses.

How to combat unethical practices during interviews

It’s all well and good understanding what constitutes ‘ethical practice’ during interviews and what doesn’t, but unless you make changes, you will continue to put your company at risk.

Here are some tips to make your interview processes compliant…

1. Increase the number of decision makers

Having more than one perspective on the matter will reduce the chance of bias occurring.

The more people that are involved in the decision-making process when assessing and recruiting a candidate, the more likely that a balanced and fair decision will be reached concerning their applicability for the role.

2. Set out the rules of eligibility before you interview candidates

This goes beyond the mere job description. Ensure your team devises a set of agreed-upon values that you want your successful candidate to have.

This will stop any personal preferences getting in the way when an employer selects a candidate for a role, simply because they’ll have to consider the input of other team members as well as be compliant to the set of values too.

3. Make it formal and “put it in writing”

Create an ‘interview rulebook’ that all employees in your company can access and read.

Having guidelines, agreed upon rules, and ‘best practice’ methods written down in black and white means there is no excuse for hiring managers to rogue during interviews and pick a candidate for the wrong reasons.