Interviewing potential employees may seem like a laborious task but as litigation and fear of litigation spreads, it is paramount that organisations get their recruitment processes right.  Appointing the right candidate is crucial but it is also important to limit potential exposure to legal claims and save your organisation unnecessary expenditure of both time and money.

Organisations frequently place trust in line managers to interview candidates and select the most suitable individual. While organisations clearly wish to comply with employment laws, can you guarantee that no seemingly innocent but damaging questions are being asked during interviews?  Is a manager consciously or subconsciously selecting someone on the basis simply that they would “fit in”?

Discrimination laws protect individuals during the recruitment process and therefore questions relating to a candidate’s sex, race, age or disability for example, are quite simply ‘no go’ areas (unless a fundamental element of the role requires discussion of these issues).

Avoid discussions surrounding a candidate’s private life. While it may be appropriate to ensure that a candidate feels at ease during an interview, it is simply not appropriate to ask questions surrounding a candidate’s personal circumstances. This could lead to inadvertent questions being asked which could be discriminatory.  General discussion which does not form part of the interview structure should therefore be kept to a minimum to avoid falling foul of discrimination laws.

During an interview, it is important that the questions asked relate to a candidate’s ability to do the job only. Questions such as those listed below are examples of questions that should certainly be avoided:

·    How do you think you will work in a younger team?

·    What are your future family plans?

·    What are your childcare arrangements and how will you work around your children?

·    What religion are you?

·    Are you married?

There are ways of eliciting the information you require in a non-discriminatory way.  For example, you can legitimately consider the implications of a specific physical requirement for a role if the job demonstrates that this is necessary.  Such information may be extracted using a pre-employment health questionnaire or during an interview, although bear in mind that questionnaires will require justification before their use when the provisions of the Equality Act 2010 come into force.

Equally, if you wish to confirm whether a candidate can manage the general workload, you could ask questions relating to travel, relocation or overtime. 

Finally, avoid questions about race and religion.  The only permissible question in this arena would be to ask whether a candidate has the right to work in the UK, as organisations are obliged to check this.

In summary, proposed questions should always relate to the requirements of the vacant role and the same questions should be asked of each of the candidates.  The structure of each interview should therefore be the same and all candidates should be treated equally.  Following these few simple steps should help to minimise risk:

·      If you are interviewing with other managers, train them in interview technique – especially in relation to appropriate and non-appropriate questioning.

·      Provide standardised question sheets for the interviewing managers (and stick to them).

·      Ensure all interviewers are familiar with your Equal Opportunity Policy.

·      Prepare a form to complete during the interview to ensure standardised notes.

Jennifer Featherstone

Shoosmiths