Finding new employees for your company can be a costly, time-consuming process. Therefore, it stands to reason that most employers want to create effective recruitment processes that help them find the most suitable candidate for the role.
The fundamental parts of this process are the application and interview stages, where thoughtful interview questions help managers gauge a candidate's suitability for the role. But there's another consideration too. And that is ensuring a fair and respectful experience for everyone involved.
Therefore, employers need to steer clear of questions that may inadvertently breach discrimination laws or compromise the integrity of the hiring process.
So, what exactly constitutes an illegal interview question? In this article, we'll explore what you can and can't ask candidates, explain why, and offer guidance for conducting interviews that are fair and compliant with UK employment law.
Interviews and Employment Law
Employers and job seekers alike benefit from understanding what's legal, and what's not, in the interview process.
As an employer, this knowledge helps you streamline your search for the best-quality candidates while respecting interviewees' time.
Questions that can be asked in interviews are shaped by the Equality Act 2010 which sets out that all job candidates cannot be discriminated against, harassed, or victimised because of their:
Perceived protected characteristics
Association with someone who has a protected characteristic.
Protected characteristics are essential parts of a person's identity that cannot be discriminated against.
Companies that do so may face fines or penalties, not to mention damage to their reputation.
Therefore, it's important to know these characteristics and what questions are acceptable during interviews.
The 9 protected characteristics named in the Equality Act 2010 are:
Religion or belief
Sexual orientation or gender identity
Race, ethnicity or nationality
Mariage or civil partnerships
12 illegal interview questions employers must avoid
Questions about age
Age discrimination can affect anyone, young or old. It is a form of discrimination based on treating someone less favourably because of their age.
Here are some questions that employers should avoid asking job applicants or interviewees to prevent potential age discrimination claims:
How old are you?
When did you graduate from school?
What year were you born?
How long do you plan to continue working before retirement?
Do you think you'll be able to keep up with the place of the team, given your age?
Are you concerned about technology changing too quickly for you to keep up?
Do you have any health conditions that typically affect people your age?
Will your age be a barrier to fitting in with our younger team members?
Do you think your age will impact your ability to learn new skills or adapt to new technologies?
These questions are not only inappropriate but could also be seen as evidence of age discrimination.
The only time an employer may be able to enquire about a candidate's age is to find out if they meet the minimum age required for a position. If this is necessary, instead of asking 'How old are you?' the question should be phrased as such: 'Are you over X years of age?'
Questions about marital status
Regardless of whether a person is married, in a civil partnership or cohabiting, their marital status is a protected characteristic and shouldn’t be used by recruiters and employers as criteria for job suitability.
Interviewers shouldn't ask:
Are you married?
Are you single?
Do you have a partner or a spouse?
Are you planning on getting married?
Are you in a civil partnership?
Are you cohabiting?
There is no real, justifiable reason to enquire about a candidate's marital status. If an employer is concerned about the impact of a name change, they may ask a candidate to disclose any other names they may have gone by previously, or ask for documents to evidence a change of name (such as a marriage certificate). However, that is as far as it should go as questions about marital status could be seen as discriminatory.
Questions about plans for starting a family or whether you have children
Interviewers should not ask candidates if they have children or what their plans are regarding children. Similarly, they should not ask candidates if they are pregnant, as this could be seen as pregnancy discrimination.
Employers cannot ask:
Do you have a family or are you planning on starting one soon?
Do you have children, or are you planning on having any?
How old are your children?
What are your childcare arrangements?
Do the job hours clash with your family arrangements?
Employers are, however, able to ask questions about whether a candidate will be able to work overtime or be able to travel if necessary to be able to determine if that candidate is suitable for the job.
Questions about religion or beliefs
Asking an interviewee ‘Are you religious?’ as an interviewer can be considered to be discriminatory under the Equality Act 2010.
Regulations say that it is illegal to discriminate against someone in a job application process due to “any religion, religious belief or philosophical belief”.
Employers are allowed to ask if anything will restrict your ability to attend work at any time and prospective employees, you should be upfront about religious duties like holidays and prayer time which may impact their work. Typically, an employer will need to make reasonable adjustments if an employee requests to observe religious holidays and rituals, otherwise, they could make a claim against them for discrimination.
Philosophical belief might sound a bit vague, however, this element of the law has been clarified following an employment tribunal, Grainger Plc vs Nicholson, which related to an employee’s beliefs about climate change.
The five elements that turn a philosophical belief into a protected characteristic are:
The belief has to be genuinely held
It has to be a belief, and not simply an opinion or viewpoint that’s based on the present state of information available
It has to relate to a weighty and substantial aspect of human life and behaviour
The belief has to attain a certain level of cogency, seriousness, cohesion, and importance
It has to be worthy of respect within a democratic society, and not be incompatible with human dignity or conflict with the fundamental rights of others.
Therefore, employers should not ask:
What is your religion?
Do you practice a particular faith?
Do you observe religious holidays?
Do you attend religious services?
How does your religion influence your work ethic?
Questions about sexual orientation or gender identity
Sexual orientation refers to a “person's identity in relation to the gender or genders to which they are sexually attracted."
Examples of sexual orientation include
Heterosexual/straight – attracted to the opposite gender
Homosexual/gay – attracted to the same gender
Bisexual –attracted to men and women
Asexual – doesn’t feel sexual attraction to anyone
Pansexual – attracted to people of any gender
Sapiosexual – attracted to someone’s mind and personality
A person's sexual orientation should not be discussed in any interview or the workplace at all. It is unlawful for a recruiter or hiring manager to ask about anyone's sexual orientation as it does not relate to a qualification, skill, or any other relevant criteria for making hiring or employment decisions.
Questions about race, ethnicity, or nationality
In the context of a job interview process, it is illegal to ask a prospective employee about their race, ethnicity, and nationality under the Equality Act 2010.
Previously, there was specific anti-race discrimination legislation, including the Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995, however, these were distilled into the Equality Act 2010 to make discrimination legislation more accessible.
Examples of race discrimination could be assuming an individual is from a particular country because of their name.
Race discrimination may be indirect discrimination such as an employer insisting the qualifications for a job must be UK-centric, or having a workplace dress code where religious garments cannot be worn. Another example includes asking potential employees to speak fluent English when only working knowledge is needed to be successful in a job.
Direct discrimination is when an employer treats someone differently directly because of their race, an example would include refusing to hire someone because clients of the company wouldn’t accept them.
Another is if an employer turns down an application because of an applicant's relationship with someone from another background, for instance, they're married to someone from a different race, nationality, or ethnicity to the hiring manager.
Here are some examples of questions regarding race, ethnicity, or nationality which should never be asked in a job application or interview:
What is your race or ethnicity?
Where were you born?
What is your nationality?
What language do you speak at home?
How do you identify racially or ethnically?
These questions may be asked in an anonymised equal opportunities survey during the application process, but the answers should never be connected to the candidate, nor should these answers be used to make a hiring decision.
Questions about health and disability (unless necessary to establish if a candidate can perform specific tasks)
Job applicants, by law, do not have to tell an employer or potential employer they are disabled. However, if they do choose to disclose this information, then the employer has a legal duty to support them through reasonable adjustments.
That being said, employers can ask a job applicant relevant questions about their disability and health before or during the interview process to find out whether they can do something essential to the job.
It is also okay to ask a job applicant about their disability or health to find out:
If they need reasonable adjustments to take part in the application or recruitment process
For equality and diversity purposes
To support positive action for disabled people.
However, interviews can't ask any other questions about disability or health unless it relates to an intrinsic part of the job. Nor can they reject a candidate just because they're disabled.
An example of disability discrimination is refusing to install a wheelchair ramp in a workplace for a disabled staff member or someone going through an interview process.
Questions about drug and alcohol use
It is illegal to ask candidates in an interview, questions relating to their lifestyle, including their use of alcohol and drugs.
Some industries are allowed to carry out random drug and alcohol tests. However, they are not allowed to discriminate against job seekers by asking about their habits in the interview process such as:
Do you drink alcohol?
How much do you drink?
Do you smoke?
Businesses can however set out their zero-tolerance approach to alcohol and drug abuse, and rules around smoking at work, in their policies and procedures, which are usually included in a company’s staff handbook.
Questions about finances
While English law doesn’t exclude interviewers from asking candidates about their previous salary, a prospective employer should not ask questions about your personal finances or credit history including, how you supported yourself between jobs when there is a gap in your CV in your employment history.
Questions about political beliefs or affiliations
This is a grey area under the Equality Act 2010, two schools of thought clash over whether political beliefs or affiliations should be classed as philosophical beliefs under the act and therefore be considered discriminatory if rejected.
A recent employment tribunal Olivier v Department of Work and Pensions gives further guidance. In this case, an employee brought a discrimination claim against his employer when he was fired for his ties to the Labour Party and his strong-held beliefs in ‘democratic socialism’.
The tribunal found that his beliefs amounted to a philosophical belief under the act.
Questions about trade union membership
Employers cannot discriminate, by not offering a job, to someone because they are a member of a trade union, or attempt to force a jobseeker to join a trade union as a condition of hiring them. Therefore, it is inappropriate for them to ask, during the interview process, whether or not a candidate is part of a trade union, or use this information as justification for not giving someone a job.
Questions about previous convictions
In job interview processes applicants don’t have to tell employers about spent criminal convictions. Employers should treat a spent conviction as if it never happened and can’t refuse someone employment due to a past spent conviction.
That being said, employers can ask about convictions and imprisonments related to the job role. For example, if the candidate will be working with children or the elderly, it is important to know if a candidate has been convicted of any crime relating to these individuals.
It is not okay, however, for an employer to ask about arrests that did not end with convictions.
Do candidates have the right to refuse to answer interview questions?
If you think you have recognised a question that a recruiter is asking you is illegal you may consider refusing to answer it.
However, you have to work out in context if the question is relevant to the job role before you refuse to answer it out of hand.
Your options are:
Ignoring or refusing to answer a question - this might make you look defensive like you have something to hide or arrogant and self-important
Politely change the topic – this is often a good tactic as you haven’t refused to answer a question
Answer directly or indirectly – answering the question may jeopardise your chances of getting a job, but would you want to be hired by a discriminatory company anyway? You will have the option of making a claim against a company if you answer honestly and are treated unfavourably under the Equality Act 2010 as a result
Who should a candidate report illegal interview questions to?
If you feel like you have been discriminated against in an interview process you should report the matter to the relevant authorities. In the first instance, you should make an anonymous report to the HR department of the employer where discrimination took place and explain what happened.
You may also be able to take legal action. You can use the following as evidence:
The wording of the job advert – if it asks for ‘young and dynamic’ applicants
The wording of the job description – if it asks for recent graduates
The venue for interviews – if adjustments weren’t made for accessibility
Get help with employment law from Lawhive
At Lawhive, our employment lawyers are on hand to help employers understand what they can and can't do during the hiring process to make it fair and lawful. Our network of solicitors is also on hand to support employees or candidates who feel they have faced discrimination, either through a recruitment process or in the workplace.
Contact our legal assessment team for tailored guidance for your specific needs.