Employment lawyers share tips, best practices to avoid unlawful hiring
A Sydney company made news recently when some of its pre-interview questions raised eyebrows.
An anonymous Reddit user shared a screenshot of a questionnaire with questions sent by a firm after applying for a position, according to news.com.au.
The final three questions had the applicant claiming they were “extremely illegal” and they said they would be reporting the company to the Fair Work Ombudsman.
The questions include: “Marital status?”, “Do you need to discuss your career move with your partner/family member/other before making a final decision?” and “Number of children + ages?” according to the article.
“It’s only natural that employers want to ask candidates questions relevant to assessing their suitability for the role as well as whether they’re culturally a ‘right fit’ for the organisation,” Brig Chauhan, principal lawyer, Aitken Partners, said.
“Questions relating to their skills, qualifications, work experience, character and interest in the organisation are important in this regard.”
However, it’s equally important to ensure these questions are put in a manner that is professional, respectful and lawful, he said.
“For instance, asking a candidate whether they can work certain hours (lawful) is very different to asking them whether they have children who need to be picked up from school each day at a certain time (potentially unlawful).”
Be careful of discrimination
Employers need to ascertain whether the questions they ask are appropriate to the job. Enquiring as to whether someone is religious, single, enjoys exercise, amongst other personal questions, are not applicable to their potential day-to-day responsibilities.
“It is unlawful for an employer to discriminate against a prospective employee on the basis of — amongst other attributes — their gender, sexual orientation, race, skin colour, age, disability (physical or mental), marital status, carer or family responsibilities, religion, pregnancy, social origin or national extraction,” Chauhan said.
“Employers should be careful to avoid questions about these matters as any answer provided could subsequently be interpreted to be the reason why they were not recruited, as opposed to any genuinely lawful reason.
Basically, employers should “steer clear of asking detailed questions about a candidate’s attributes or personal lifestyle,” he said.
Overstepping the boundaries could even lead to an investigation.
“An employer should avoid asking questions about a candidate’s sexual orientation, appearance, their age, whether they are pregnant, have children or planning to have children, who they vote for, whether they attend a place of worship, or whether they have claimed workers compensation previously,” Chauhan said.
“It is unlikely that any of these factors will be relevant to whether a candidate can adequately perform the inherent requirements of a role.”
D&I policies can raise legal risks and challenges if not implemented thoughtfully and properly, according to another legal expert.
Keep questions work-focused
It is not uncommon at the beginning of an interview for an employer to start with unofficial small talk to relax the nerves of both parties to see if there is common ground.
Talking about the weather, whether your sports team won or lost or a recent movie – without stating your personal opinion, which could lead to tension – is fine, however, it is best to get to the official interviews questions as quickly as possible.
“Only questions which are relevant to the role should be asked,” Robin Young, partner and team leader, Holman Webb Lawyers’ Workplace Relations Group, said. “That doesn’t exclude background information which may be relevant to workplace culture. The purpose is to ascertain whether the interviewee is qualified and suitable. That means information which enables the interviewer to get a feel for the interviewee’s personality and character.
Having reviewed the candidate’s resume, he said, the interviewer should ask questions about:
- education and training
- specific experience, with examples
- specific aspects of the role
- what the interviewee would do in a given scenario
- expectations concerning remuneration, entitlements
- availability, hours/days
- other relevant matters such as attire, flexibility, general work conditions and the business.
“An interviewer must not ask any question directed at excluding or denying any benefit on discriminatory grounds under anti-discrimination laws,” said Young.
More than half of Australian employees are planning to switch jobs this year, with many carrying a renewed sense of confidence that they can find another role, according to a recent survey.
Who should sit in on the interview?
Ensuring more than one person performs the interview is a good idea, as not only can parties compare notes, but it generally helps to keep the interview on track.
“Often this process will require more than one interview,” Young said. “Where available, a human resource professional should be present to offer guidance and support.
“Ultimately, before a final decision is made, the applicant’s intended direct manager or supervisor should be present as that person should have input into who performs the role.”
