According to research undertaken by Ricky Martin’s* recruitment firm, HRS, over three-quarters (77%) of interviewers surveyed said they do not think it is potentially illegal to ask, “Are you planning on going on maternity / paternity leave?” with 40% thinking the question is acceptable and 36% thinking it is inappropriate – but not potentially illegal.
Is it illegal to ask these sorts of questions?
Whilst it’s not illegal to ask a question about someone’s health, age, decision to have a family etc, we recommend you avoid them. This is because you must not ask any questions that might lead you to discriminate against a candidate (or be perceived to have done so).
So, what questions should we avoid?
- About a candidate’s health before you offer them the job (unless this is necessary to carry out a function that is intrinsic to the work concerned). For example, it would be lawful for a construction company to ask, when recruiting scaffolders, whether they have a disability or health condition that would affect their ability to climb ladders but not if it was recruiting to an admin role.
- A candidate if they are pregnant or expect to start a family soon. A woman is under no obligation to declare her pregnancy in a recruitment process.
- About a candidates’ childcare or other caring commitments. Work on the assumption that the candidate can work the hours you have specified in your job description.
Should we ask the same questions to all candidates?
Yes, and ideally in the same order. You may have to make some allowances to address specific issues, but don’t let yourself be side tracked.
We all make snap judgments about individuals. Research indicates that most employers reach a decision about a candidate’s suitability for the job before they even open their mouth!
If you properly train interviewers, they will be aware of this and should make a conscious effort to give every candidate the same chance. Using standardised questions will help as will an awareness of unconscious biases we all have.
Can candidates bring discrimination claims?
Yes, job applicants are protected from discrimination. If you make assumptions about a candidate’s suitability for the job based on a protected characteristic (such as age, sex, disability etc) the rejected candidate may bring a discrimination claim against you.
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