Employees are not the only ones under scrutiny in interviews, says employment law expert Martin Warren, who advises employers on how they can avoid finding themselves on the wrong side of the law.

Television programmes are often judged by their popularity and ability to spark discussion. If that is the case, the latest BBC series of The Apprentice has clearly proved a big hit, with the episode in which the candidates are put through gruelling interviews being a particular topic of debate.

However, much as programmes such as The Apprentice have entertainment value, it is important to remember that an employee’s first contact with a prospective employer is usually through the interview process. Whilst employers want to ensure the best employee is selected to fill the vacancy, they too can be under scrutiny in terms of the pitfalls inherent in the process. Ultimately, an employer who does not take sufficient care may find itself open to claims of breach of contract and discrimination.

Legislation is in place to ensure that selection and recruitment procedures observe the principle of equal opportunities and that applicants are fairly selected on merit and suitability for the job in question.

Specific categories of protection exist, preventing discrimination on the grounds of sex, race, sexual orientation, disability, age and religion and belief. It is vital, therefore, that employers ensure that there is no discrimination in the recruitment process, whether in advertising, interviewing, short-listing, selecting or rejecting, and that offers made to prospective employees are clear and unambiguous in order to avoid arguments at a later stage. In order to avoid these pitfalls, it is clearly important to understand what action can amount to discrimination. Comments or questions at interview, for example, can present particular concerns.

To clarify, it is unlawful for an employer to discriminate:

• In the arrangements it makes for determining who should be offered employment




• In the terms on which employment is offered




• By refusing or deliberately omitting to offer employment.

There are two forms of discrimination prohibited by legislation: direct discrimination and indirect discrimination. The former can be summarised as discrimination when a person is treated differently, for example, by reason of his/her race, sex or marital status and such treatment is less favourable than he or she would otherwise have received. Other than in cases involving potential age discrimination, direct discrimination of this nature can never be justified.

Indirect discrimination, however, is a more subtle form of discrimination but as a result can be harder to identify, or indeed, for employers to control if they are not vigilant. It arises when an employer treats all workers the same but a ‘provision, criterion or practice’ adversely affects one particular protected group more than another and this cannot be justified. Height is commonly taken as a convenient example. If an employer were to impose a height qualification of, say, 5ft 10 inches on all recruits, this would potentially constitute indirect discrimination on the grounds of sex since, inevitably, a larger proportion of women than men would be excluded. Unless the employer could justify that requirement by reason other than sex, it would be discriminatory.

Interview questions

When it comes to an interview, any questions which are discriminatory, or could be construed as such, should be avoided. Examples include:

• Are you thinking of starting a family?




• Do you speak English at home?




• Are you in a trade union?




• Are you married?




• What does your husband do?




• At your age, are you still up to the demands of this role?

Questions should relate to the requirements of the job and not domestic circumstances. Where the job involves unsociable hours or extensive travel it may be necessary to assess whether personal circumstances will affect the individual’s performance. If this is the case, it should be discussed objectively without detailed questions based on assumptions about marital status, children and domestic obligations.

Personal comments about a person’s appearance or regarding a surname which may refer to their ethnicity are also best avoided.

Disabled candidates

A disabled candidate should only be asked about the effects of their disability when it is relevant to their ability to do the job or in order to find out whether it is relevant. If it is necessary to ask an individual candidate about their disability, interviewers should attempt to separate such questions from the rest of the interview. This can be done by dealing with these issues at the end of the standard interview questioning. This should be preceded by saying that these questions do not form part of the general selection procedure.

Disabled candidates may already have thought through the implications of their disability on their ability to do the job. This will aid discussion at the interview. However, if issues arise that they have not anticipated it could be unreasonable to expect every issue to be resolved within the time of the interview, so the interviewers should be prepared to continue discussions after the interview.

If it is necessary to ask questions about disability the employer should:

• Be open minded and positive




• Be careful not to appear to be looking for problems




• Avoid making assumptions




• Ensure candidates are given every opportunity to address the issues raised about their disability.

The penalties for acting in a discriminatory way can be high, compensation being unlimited in amount. Damage to the employer’s reputation can also be considerable. Ultimately, however, the recruitment process is about employers recruiting the best person for a job. Discriminatory practice inevitably hinders that process and may rule out potentially excellent candidates.

Martin Warren is head of employment law at Eversheds international law firm.