08
Aug
2016
article

Common interviewing mistakes that could leave you legally exposed

You might not realise it, but what you consider to be a perfectly reasonable question during an interview could end up landing you in hot water. So what exactly are the potential legal traps in interviews you need to be aware of, and why?

Trap 1: Asking potentially inappropriate or discriminatory questions

Since the introduction of federal and state anti-discriminatory and general protections legislations, employers can be liable for asking inappropriate or discriminatory questions during interviews.

In Victoria, section 107 of the Equal Opportunity Act 2010 (Vic) prohibits requesting information that could be used to form the basis of discrimination, whether the request be made orally, in writing, in an application form or otherwise. The Fair Work Act is an alternative avenue for preventing workplace discrimination. Under the general protections provisions, an employer cannot refuse to employ a prospective employee or discriminate against them because of a particular attribute.

What this means for employers is that once an applicant makes a complaint under general protections laws, it will be up to the employer to disprove the claim. The employer will have to show that the role wasn’t offered to the applicant because of some other legitimate reason.

Employers should therefore avoid asking questions relating to prohibited grounds of discrimination, including age, gender, marital status, pregnancy, union membership, disability, etc. Questions such as “How old are you?”, “Have you made any previous worker’s compensation claims?” and “How much sick leave have you previously taken?” are all either unlawful or playing with fire because they are directly/indirectly seeking personal information about the job applicant that could be used for improper purposes.

Trap 2: Allowing social media research to influence your decision

With the rise of technology, it’s difficult to remain anonymous on the internet. Many job applicants will have a footprint on social media and employers are able to conduct prior research on potential candidates. However, if employers use this information to decide that the applicant will not be given the job, this may amount to discrimination.

For example, if an employer discovers on social media that a potential applicant is a parent or an active political party member and decides not to employ the applicant partly on that basis, this will be discriminatory and unlawful in most circumstances.

In contrast, if the employer finds that an applicant frequently goes out to drink and party, and then decides not to employ the applicant because of this information, this will not be unlawful because the ‘discrimination’ is not based on one of the prohibited grounds.

Trap 3: Phrasing questions in a way that focuses on a candidate’s personal characteristics

Employers should express interview questions in a way that asks if the prospective employee can complete the inherent requirements of the role, rather than personal questions focusing on characteristics of the candidate. Best practice is to ask blind questions that are phrased by identifying specific tasks and requirements of the job.

For example, if the role requires a lot of interstate travel and overtime, and the employer wants to know if the applicant can do this without worrying about family/carer responsibilities, then instead of asking “Do you have children?” or “Are you married?”, the question should be phrased as “This role requires interstate travel, are you able to travel regularly and spend time away from home?”.

If the role is physically demanding, the employer should first specify those requirements and then ask the applicant if they can perform those tasks. For example, “This job requires many hours of lifting, moving and operating of machinery, is this something you are able to do without any difficulty?”.

Anti-discrimination legislation also provides that the employer is required to make reasonable adjustments for an applicant or employee with a disability so that they can perform the genuine and reasonable requirements of the role. Interviewers should therefore ask follow-up questions about what modifications to work procedures would enable the applicant to perform the job. It’s likely to be unlawful to assume that a candidate can’t perform a specific role just because of an interviewer’s assumptions about a particular medical condition.

Trap 4: Failing to understand the law

Interviewers need to be aware of the general protections and anti-discrimination laws. It will be irrelevant if questions are asked with innocent intent if they are found to be discriminatory. Consequently, interviewers should tread lightly around those areas and inform themselves of the types of questions they can and cannot ask.

Asking irrelevant questions that do not relate to the role and then denying the applicant the job opens the door for legal exposure. Not only is this costly and time consuming, but it has potential for significant reputational damage.

This post is intended to provide general information in relation to a legal topic from a qualified legal practitioner external to SEEK. It does not constitute legal advice and should be relied upon as such. Formal legal advice should be sought in particular matters.

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Herbert Smith Freehills

Senior Partner and Section Head of the Melbourne Employment Team

Tony Wood is a Senior Partner and the head of Herbert Smith Freehills’ employment team in Melbourne. He has over two decades’ experience advising clients in employment and industrial relations matters. He acts for employers in all Australian jurisdictions and...

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