Conducting job interviews is vital to ensure the best person for the job is hired. But knowing what questions you can and can’t ask is something all HR professionals need to be aware of.
In today’s competitive environment, the quality of a company’s team is paramount to its success. However, amid the skills shortage, HR’s enthusiasm to find the right person may result in them not thinking about what they should and shouldn’t ask a candidate.
Knowing how to ask the right questions to obtain the appropriate information can be challenging, and it’s important to understand what’s considered invasive, unprofessional and, in some instances, unlawful. The right not to be discriminated against doesn’t just apply to existing employees. It also extends to prospective employees and ensures they aren’t denied job opportunities for discriminatory reasons.
Avoiding direct or indirect discrimination
Direct discrimination occurs when a prospective employee is treated differently because of a particular personal characteristic.
There is also indirect discrimination that occurs when an apparently neutral question results in a person, with a particular attribute or from an identifiable group, being unfairly disadvantaged.
Several aspects of Australian employment law make it illegal to ask questions that may cause discrimination, such as whether someone identifies with a particular religion or if they plan on having children. Section 351 of the Fair Work Act prohibits employers from discriminating against both employees and prospective employees based on the following factors: race, skin colour, gender, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, national extraction or social origin.
Some states and territories also have anti-discrimination legislation in place which protects candidates against discrimination based on union activity, political opinion and criminal records. HR must be aware of these federal and state laws when preparing interview questions.
Asking questions on these topics, whether intentional or not, could leave a business vulnerable to legal action. In cases like this, the employee may be entitled to compensation.
The Fair Work Commission (FWC) and courts have the power to issue fines per contravention of up to $66,000 for a corporation and $13,320 for an individual. Essentially, it’s best for HR to avoid questions that relate to the personal life of a prospective employee that are irrelevant to their ability to perform the job. You need to treat all prospective employees the same.
It’s also important to put the same questions to every candidate being interviewed for a particular position.
Exceptions to the rule
There are instances where questions asked to gain a level of personal information are relevant to assessing a candidate’s ability to perform the tasks associated with the position and are therefore reasonable.
Different states have different exemptions, but generally some relate to:
- Asking about a candidate’s residency status to assess their capacity to work full-time hours.
- Public health-related matters.
- Setting reasonable standards of employment to accommodate any physical or mental impairments.
- Caring for or being in the presence of children.
How should candidates respond to inappropriate questions?
Candidates have every right to take legal action against a prospective employer if they have been discriminated against during an interview process.
Ultimately, what an employer asks a candidate in an interview should relate to the job and how suitable they are for it.
Despite current legislative boundaries, illegal questions still arise in the interview process in Australian workplaces. Candidates have a right to refuse to answer these questions and, if pressed, may pursue legal action through regulators such as the FWC, Fair Work Ombudsman or the Australian Human Rights Commission.
Robert Lamb is a Director at Hillhouse Legal Partners.
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