When it comes to interview questions, there has been a lot written about the right type of competency based questions to ask a candidate in an effort to ascertain if they are the right person for the role. That then begs the question; “Are there any questions that should not be asked in a job interview?”
The short answer is - Yes.
Just as we choose the right questions to ask a candidate to get the most value out of the interview process, it is also important to be aware of the types of questions that legally, are not allowed to be asked. These include questions about the candidates;-
Questions relating to these topics are illegal, as they do not relate to the candidates ability to do the job. The law in Australia is pretty clear in this regard and is covered under the following pieces of Commonwealth legislation;-
The provisions of the Fair Work Act 2009 apply equally to prospective employees (ie job candidates) as they do to existing employees. Each State in Australia also has its own Anti-Discrimination legislation and so should be referred to alongside the Federal laws.
There is an exception in the Fair Work Act 2009 that allows a question if it is directly related to the candidates ability to perform the role. An example may be a question that relates to the candidates physical abilities where a particular role say includes heavy manual labour. Similarly a question about languages spoken if the role requires proficiency in a second language.
Equivalent legislation in New Zealand is covered by;
What If I’m asked an Illegal question?
Most HR professionals will be across the legislation and therefore know what can and can't be asked in an interview. This mostly becomes an issue when functional managers who are not across the law/have not been properly briefed, become involved in subsequent interview rounds.
Sometimes an Interviewer may not ask an illegal question directly but instead frame it in a more casual way such as “When did you leave school?” - In an effort to establish how old the candidate is.
If faced with an illegal question during an interview, it is often best to respond with another question. Such a tactic may also make it seem like you are simply asking for clarity or more information. E.g., “Can you tell me a bit more about the role?. I’m not sure how this relates to the job”
Candidates must also be careful not to answer interview questions that relate to proprietary information relating to their current and/or previous employers. If faced with such a question a simple response like “I’m sorry I can’t talk about that” will suffice. It may feel abrupt to answer in such a way but you will gain confidence in knowing what can and cant be asked and that you are prepared with an answer.
It can be difficult in the pressure of the interview environment when you are trying to be open and responsive to each question. The simple rule of thumb though is to ask yourself in each situation - How does the question relate to the job and your suitability for it.
Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. Fifth Executive provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your specific circumstances.