Employment law- Interviews
If at interview, you are asked questions that relate to a “protected characteristic” under the Equality Act, (namely age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation), and you are then treated less favourably because of your answers, then you are entitled to make a claim of unlawful discrimination at an employment tribunal. This would apply where, for example, you were not offered a job because you replied to a question in the positive about whether or not you had, or were planning to have, children.
In particular, if you have been rejected in favour of someone of the opposite sex or of a different racial group (even though you have the same or better skills) and you can show that you were materially disadvantaged by the way in which the interview was conducted, you will have a strong argument that the selection decision was discriminatory.
This is not to say that it is unlawful to actually be asked questions that relate to your age or marriage etc, but that your employer is at risk of an allegation of discrimination after the question has been asked.
If you decide to take the matter to tribunal and can prove facts from which the tribunal could conclude that the employer has discriminated, the burden of proof then shifts to the employer. This means that if the employer cannot provide a credible non-discriminatory explanation for its actions, the tribunal will uphold the complaint.
Even if the discrimination is done unintentionally and for which the employer would say it wasn’t sanctioned, this is no defence to the act of discrimination. The employer’s knowledge or approval is irrelevant.
So, what shouldn’t a prospective employer ask you at the interview stage?
It follows that you should not be asked any questions that go against the spirit and aim of the Equality Act which states that you should not be discriminated against in relation to the “protected characteristics”.
You generally should not be asked about health or disability related questions either at interview stage or on an application form – including how many days’ sickness you had in your previous employment. This is unlawful under the Equality Act 2010.
However, you can be asked about your ability to carry out a function which is essential or intrinsic, to the role that you are applying for. If you have a disability that could impact on your ability to do the role, your employer should consider whether you can still do it if reasonable adjustments were made.
For example, if you apply for a role in a distribution warehouse, where you will need to carry heavy boxes, a prospective employer is entitled to ask you whether you have any health condition which may impact on your ability to perform this task. The ability to carry is essential to the role, so the employer is allowed to ask you this question.
Health inquiries can be made after you have successfully landed the job, but only to ensure that there are no obstacles to being able to carry out your role, and to address whether reasonable adjustments are necessary. Your employer cannot ask for a medical report on you without your knowledge or consent.
There are some limited situations when an employer is allowed to ask questions about your health or disability before offering you a job. These include:
- questions to monitor diversity in the range of applicants, although the monitoring form should be kept separate from the main application form;
- questions to establish if you’re able to benefit from positive action measures the employer has in place – for example, a guaranteed interview scheme;
- if the job you’re applying for requires someone with a particular disability where this is an occupational requirement of the job.
In all these situations, the employer needs to make clear why they’re asking these questions and what will be done with the information.
You should not be asked your age or date of birth. Crafty employers do try to get round this by posing related questions, such as asking an older applicant how long he or she sees herself working until retirement, but this would also be unlawful.
3. Marital status/children/pregnancy
Prospective employers should avoid asking questions about your marital status, whether you have children, or are planning a family soon. It is acceptable, though, to be asked whether there are any responsibilities that could interfere with your attendance at work. You should furthermore not be questioned about your sexual preference.
If, on the basis of your name or appearance, an interviewer were to ask about where you were born, your race, native language, or religious views or affiliations, this could be seen as potential discrimination if you are not offered the role. You should be interviewed on the merits of your expertise only, for the role you are applying for.
5. Previous convictions
The Rehabilitation of Offenders Act (ROA) allows most convictions and all cautions, reprimands and final warnings to be considered “spent” after a certain period. This period – known as the rehabilitation period – is determined by the sentence or disposal given, rather than by the type of offence. The ROA gives people with spent convictions, cautions, reprimands and final warnings the legal right not to disclose them when applying for jobs.
For custodial and community sentences, the rehabilitation period will start from the end of the total sentence imposed by the court – not from the actual time served in custody (i.e. the day of release).
It is against the law for an organisation to obtain information about an individual’s spent cautions or convictions unless the law specifically states that they can ask an exempted question; usually when someone is applying for a job or role that is exempt from the ROA (such as the police force). If you apply for a job that is exempt from the ROA, an employer is entitled to request details of spent and unspent convictions and cautions that are not protected and is entitled to take this information into account when determining your suitability for the role.
What counts as a spent conviction?
Convictions with a sentence of 4 years or less will become spent after a certain period of time ( the “‘rehabilitation period’). Its length depends on how severe the penalty was.
Rehabilitation periods for England and Wales
Custodial sentence Rehabilitation period (from end of sentence):
0 – 6 months = 2 years
6 – 30 months = 4 years
30 months -4 years = 7 years
more than 4 years = never
Non-custodial sentence Rehabilitation period (from end of sentence):
-community order = 1 year
-fine = 1 year (from date of conviction)
-absolute discharge = none
Am I entitled to written reasons for why I was unsuccessful at the interview?
There is no legal obligation for an employer to respond to your request. But a failure to do so may be enough to satisfy you, and in turn an employment tribunal, that there was a discriminatory reason why you did not get the job.
Can you be disciplined because you are applying for a new job?
You are entitled to look for a new position and you cannot generally be disciplined for doing so. It is certainly not a reason to dismiss you. If your job performance suffers because your attentions are diverted and you no longer have interest in the job, that is a different matter and you could be disciplined on capability grounds. Similarly, you may subsequently find yourself more isolated by your employer if you are working on specific matters and where loyalty to the business is essential.
Where you do need to be careful is where you are using work computers in your search for a new role. This personal use of your employer’s IT systems could amount to a breach of company policy, and some employers will be more lenient than others in this regard. Even if you are conducting your search during lunchtimes and after work hours, the fact that you are using work computers and telephones in your job search puts you at risk.
Does my employer have to agree to let me have time off for interviews?
Not normally, so you may need to take a whole or part of a day off as part of your annual leave.
An exception, however, is where you are being made redundant. You are entitled to be paid for reasonable time off during your notice period to look for another job, provided that you have been continuously employed for 2 years by the date your notice expires (although there are exclusions to this for certain employees). What is ‘reasonable’ depends on your circumstances including where you live, the type of work you do and how far you are willing to travel for that work. If your employer refuses to allow you to take time off for this purpose or does not pay you, you could bring a claim in the employment tribunal.