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What personal changes can you suggest to a prospective candidate?

By JAMES COAKES Published 29th Sep 2014
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In the interests of preventing workplace discrimination—and accusations of discrimination—there are several things that hirers can not legally say to or ask job candidates. For the most part, these things relate to candidates’ personal lives, and don’t relate directly to their job capability.

Questions about a job candidate’s personal life are strictly off the table, unless they are directly relevant to the job itself. A candidate’s sexual, marital, or parental status, age, tobacco use, alcohol use, political beliefs, and criminal history cannot be asked about or referred to in an interview. Age can be referred to only when there is a legal age requirement for the job—for example, if the job requires that the candidate have their own driver’s license, or if the job is with the police or armed forces.

Interviewers cannot ask questions about a candidate’s health, or any disability they may have - unless or until the candidate has been offered a job (whether conditionally or outright), or if they will be offered a job when it becomes available. This includes questions that relate to previous work absencesfor health or disability reasons. There are a few exceptions; for example, whena person’s ability to carry out a job is intrinsically affected by their physical health -if a construction company is hiring scaffolders, they may ask questions that specifically relate to an applicant’s ability to climb scaffolding. You can ask about a disability if you are using positive discrimination and want to hire a person with a disability.

Questions about religious beliefs, ethnicity, and birthplace should also be avoided. An employer can ask if a candidate has the documentation needed to work in the UK, but cannot ask any other questions relating to ethnicity or country of birth -and unless the job is directly affiliated with a specific religion, religious beliefs should never be referred to.

In general, it’s legal to ask questions that relate directly and specifically to a candidate’s ability to do the job - and asking the right questions entirely obviates the need for the wrong ones. For example, while you can’t ask someone if they have children or a partner, you can ask them if they have any responsibilities or commitments that might affect their job capability. You can’t ask a candidate if they speak English fluently, or if English is their first language, but you can ask them how many languages they are fluent in.

If the job requires a certain level of personal grooming, or if the company has a dress code, you can ask that a candidate conform to the requirements,after they have been offered the job. However, it’s also incumbent on employers to make sure that dress codes aren’t discriminatory - for example requiring women to wear high heels.

One area that is very grey is that of headwear bans, particularly when it results in targeting Sikh or Muslim employees. Such codes may not be technically illegal, but they have resulted in many claims of discrimination. The UK continues to grapple with its policy in this area and, as a result, such cases really can go either way. The net results is that the pool of available jobs for those who wear headgear for religious reasons is without doubt smaller, particularly in small businesses not run by people from those communities.

This is potentially a bit of a minefield, particularly for companies who allow untrained or inexperienced employees to conduct interviews. There are right and wrong ways to ask questions and, in some cases, stages of the employment process where questions can be asked. The conclusion has to be that leading interviews is no place for amateurs.

In 2013 there were over 4.9 million businesses in the UK and 99% of them were small and medium sized, which are typically the companies where these issues might cause problems. Are you making the most of this when promoting the benefits of working with a professional recruiter?

Note: Page 8 of this report from The Ministry Of Justice gives figures for the various forms of discrimination cases brought in recent years.

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