Many managers do not realise that some of the questions they ask during interviews are unlawful. Pam Loch and Chloe Pereira explain how to avoid the interview trap.
Many managers carrying out interviews focus not only on the skills of the candidate concerned, but also on their ‘fit’ for the business. Will they get on with existing employees? Do they fit with the traditional/trendy culture of the company? Will they easily adapt to the demands of working additional hours when required?
Some managers may not appreciate that the questions they ask are unlawful. Indeed, research by RecruitSure.com indicates that over a third of interviewers ask illegal questions at interview, exposing their businesses to potential claims.
Employment legislation provides protection for candidates during the recruitment process, including at interview. Candidates have the right not to be discriminated against for any of the prohibited reasons, which includes sex, race, religion, age, sexual orientation and disability.
Avoiding liability – the basic approach
Clearly managers should be provided with training on discrimination legislation and the types of questions which must be avoided. The prohibited grounds of discrimination are set out by legislation and there are obvious pitfalls which can be avoided, for example, ‘how old are you’?
However, employers should also consider the questions managers may ask which do not so obviously fall under the legislation, but could be considered to be discriminatory. For example, ‘how many years experience do you have in the industry’? Whilst this may seem like a perfectly reasonable question, and the motive behind asking it could be argued as being completely legitimate, it can be discriminatory on the grounds of age. Managers should be made aware that the intention behind their question won’t necessarily matter if the question itself could be interpreted as being directly or indirectly discriminatory.
A simple way to avoid this is to ensure the manager prepares all the questions they may wish to ask in advance. Each question can be carefully considered and structured, with the support of HR if required, to avoid unintentional discrimination.
Managers should also be very careful about the notes they take at interviews. Even comments to jog the memory later could be considered discriminatory, for example, ‘nice young girl wearing red blouse and skirt’. Such a note may have been made as an aide memoire so the interviewer will be able to recall the candidate when reviewing his notes. However, if that candidate didn’t get the job, or if she did and another unsuccessful older male candidate suspected it was because of her/his age or sex, these records will not look good for the employer.
Although training may stop managers asking illegal questions, it will not necessarily stop them from forming their own opinions and making a decision based on discriminatory reasons. For example, a manager interviewing a female candidate notices that she is wearing an engagement ring. The manager knows he must not ask the candidate about this as he could potentially risk her bringing a claim for sex discrimination. He doesn’t expose the company by asking the candidate an illegal question, but he does decide not to offer her a second interview. He comes up with a seemingly legitimate reason, such as arguing that another candidate is more qualified. Actually the manager has made his decision based on the assumption that the candidate is marrying and will therefore be looking to start a family soon: if he hired her she would soon be off on maternity leave.
Avoiding liability – the complete solution
In order for employers to ensure that their managers are not making discriminatory recruitment decisions, much more effort and thought needs to go into changing perception – not just practice. Employers need to educate interviewers so that they understand, for example, that ‘trendy’ doesn’t necessarily equal ‘young’, and that women make just as good employees as their male counterparts.
As well as having the appropriate mindset and asking the right questions, there are additional interview techniques which could help. Psychometric testing for example can indicate whether the candidate has the types of characteristics which will ‘fit’ in with the business model. For example, asking the candidate to talk about particular achievements in previous roles, rather than concentrating on her number of years experience, will help to focus the interviewer’s mind in the right direction.
The future of recruitment
Forming opinions based on subconscious perceptions will undoubtedly always form an unavoidable part of the recruitment process, but with a society and legislature continuously moving toward equality, a much more comprehensive recruitment process is likely to become part of the norm. The more thorough and considered the process, the less chance there is of not only facing claims for discrimination, but of missing out on valuable talent in potential employees which may otherwise have been discounted for illegitimate and irrelevant reasons.
Pam Loch and Chloe Pereira are from employment law firm, Loch Associates
One Response
Good advice
I once had an interview where the interviewer asked me if I liked babies. He was obviously trying to ascertain whether I was likely to have one of my own soon. It was a very uncomfortable conversation and I wasn’t sure how to respond. I later discovered that he asked another candidate whether they liked to do drugs at the weekend, so perhaps I got off lightly!