8. Illegal Interview Questions

It is worth knowing that occasionally, questions asked in an interview may not be lawful but what is important is that you are able to recognise one of these questions and tactfully sidestep it without loudly declaring that it is illegal for them to ask such a question!

A Recruitment/HR professional should be aware of employment law and ensure that all the questions comply to such guidelines but sometimes, it can come down to sheer ignorance or inexperience of the interviewer. And, whilst jobseekers would probably be able to recognise a blatant discriminatory question, there are often ‘grey’ areas and questions within a job interview that may seem harmless, yet are, in fact, discriminatory and therefore illegal. However, anyone involved in the hiring process should be aware of what is considered to be discriminatory and their reasons for hiring someone should simply be on their ability to do the job.

8.1 - Types of Illegal questions

8.1.1 - Racial discrimination

The Equality Act 2010 makes it unlawful for an employer to discriminate against you because of race. Race includes:
  • Colour
  • Nationality
  • Ethnic or national origins

Under the Act, it does not have any significance as to whether the discrimination was made on purpose or not. What counts is whether (as a result of an employer's actions) you are treated less favourably than someone else because of race.
Such questions may include:
  • What is your native tongue?
  • Where were you born?
  • How long have you lived here?
  • Are you a UK citizen?
Although this last question may seem like the simplest and direct method to find out if an interviewee is legally able to work in the UK, it remains unlawful to be asked in such a way. Your response may be “I am authorised to work in the UK.” However, it is important to note that the employer does have a right to ask whether you are legally entitled to work in the UK. Neither is it illegal for them to choose whether or not to select you based on your fluency in English.

8.1.2 - Religious discrimination

Asking what religion you practice or how you practice it can be a sign of religious discrimination. It also extends to the perception of or a person’s association with someone of a particular religion or belief. The religious regulations give protection against discrimination on the grounds of “any religion, religious belief or philosophical belief”. The Equality Act widened this to specifically protect “lack of belief” as well.
However, it is acceptable for an employer to explain the requirements of the job and the business need and ask if you can meet them i.e. if you are asked about your availability of weekend working for shift work. Once in the role, it may be that the employer is able to make reasonable adjustments to suit time-off you may want for religious holidays, prayer time etc. but they are not obliged to if it compromises the role and therefore, the business.

8.1.3 - Age discrimination

Age discrimination is rarely about an active dislike (unlike racism for example) but is based on stereotyped prejudices and myths. For example, younger workers being less committed and older workers more loyal would be construed as ageist.

Sadly, job seekers are reporting age discrimination beginning as early as the mid-thirties. By the time you reach your forties, you can be considered ‘over-the-hill’ in some industries. In addition, to being considered ‘old’, experienced candidates are sometimes considered more of an expense (higher salary, pension, benefits costs, etc.) than a younger applicant would be. 

Also, in the present work environment, it is widely known that there is no such thing anymore as ‘a job for life’ and people do have more than one career or purposely choose a part-time job to pursue other interests or another business. So, if you do get asked about why, after achieving a certain level in your career you are now applying for a lesser role in terms of job function/money/hours, you may have to justify your reasons that could include a variety of factors – e.g. your personal circumstances have changed, you may want a less stressful job with fewer hours or you may want a career change.

However, with more older workers considering postponing retirement because of poor pensions and a difficult financial climate, recruiters are aware that there is a benefit to a highly skilled older workforce so if you CV does not give your age away, you should stand as much chance as anyone younger (see our Successful CV Writing guide).

Of course, age discrimination also works the other way and an interviewer may consider an applicant too young for a job, particularly if the role requires managing others who may be older.

If you are faced with a question concerning your age, phrase your answer in such a way to demonstrate that your age is not a relevant factor but that it is your skills and experience that count. Questions may include:
  • Aren’t you possibly a little old to cope with this job?
  • Aren’t you a little young to hold a position of this level?
  • Don’t you want to be earning more money than this at your age?

8.1.4 - Sexual Discrimination

This area of discrimination is usually more targeted towards women but do also be aware that male applicants can also experience the same.
Interviewers should not make any reference to a person’s marital status, children they may have now or in the future or their sexual preference. All could be grounds for discrimination as companies might be deemed to view a person being married as either favourably in that they may see an applicant as being more stable or, perhaps, unfavourably in that they may see a conflict of interest between a single person having more time to devote to the job over a married person who might have to juggle family commitments.
Questions may include:-

  • When do you plan to get married?
  • Do have any children?
  • When do you plan to have children?
  • How old are your children?
  • Will childcare arrangements be a problem for you?
  • Will the hours of the job clash with your family commitments?
The other area of sexual discrimination would include questions on sexual orientation, which is absolutely off-limits.

8.1.5 - Disability Discrimination

When you are applying for a job, employers may legally ask for details of your health or whether you have a disability but The Equality Act 2010 places some limits on questions an employer can rightfully ask.
The reason they do have the right to ask is that an employer is only obliged to make ‘reasonable adjustments’ to accommodate a disabled person. If a candidate is unable to do the job despite adjustments being made, then the employer is allowed to reject the application.
Some reasonable questions would include:-
  • How might you be able to carry out XXX function of the job?
  • Are there any adjustments we would need to make to accommodate your disability?
But anything which is assuming or irrelevant is deemed as illegal, i.e.
  • Don’t you think it would be difficult to do this job with your disability?
  • How did you acquire your disability?
You would only need to briefly describe the nature of your disability and any adjustments they would be required to make – it may help to clarify how a previous employer made those adjustments (if applicable). It might also be in your interest to look into any disability grants or funding that the employer is entitled to which should be mentioned during your interview. Fundamentally, what is most important is your ability to do the job once any reasonable adjustments have been made and you should reiterate this to the interviewer.

8.1.6 - Criminal Convictions

An employer does have a right to ask you about convictions or imprisonment, particularly in relation to sensitive positions where it may have a direct impact on the job, i.e. working with children or vulnerable adults. However, this does not extend to arrests without convictions or involvement in demonstrations.

Under the Rehabilitation of Offenders Act, certain convictions are ‘spent’ under a rehabilitation period in which case, you are legally permitted to conceal it from the prospective employer. If you have any uncertainty about your own circumstances, it is advisable to seek professional guidance.

8.1.7 - Questions about Lifestyle Choices

It is also illegal at interviews for employers to ask jobseekers any questions relating to personal lifestyle choices, for example about their consumption of alcohol, whether they smoke or use recreational drugs. Of course, a company can set out rules as per the staff handbook regarding the use of these kinds of substances. However, what an employee does outside of work is not the company’s business (except in industries where they can legally carry out random drug/alcohol tests i.e. the railway) but they certainly cannot ask questions about it at interview.

8.1.8 - Questions about Memberships or Affiliations

Questions about membership or affiliations with any organisations should also not be asked at interviews unless they are directly related to any problem they might foresee in terms of your time commitments and how that might affect your ability to do the job. Do also bear in mind that it may be that they are implying that you should actually be a member of a particular group, so honesty is generally the best policy but apply some tact if you think the job may be dependent on it.

8.1.9 - Occupational requirements

There are exemptions from regulations for ‘genuine occupational requirements’ (GOR) in very limited circumstances where the employer can state specific requirements of an individual which are critical for the job in order to employ a person of a particular race, religion, ethnic or national origin  i.e. a black film actor for an African-based movie. As long as the employer can prove that their requirements are justified, they are within their rights to discriminate this way.

8.2 - How to handle illegal questions

This will require some degree of tact and diplomacy as you may need to decipher whether it is an illegal question or one that is a little too inquisitive and irrelevant.
If the interviewer is genuinely unaware that the question is illegal and you flatly point this out and refuse to answer, you could be doing yourself a disservice as they are unlikely to offer you the job.  Only if you feel comfortable enough to answer a question, then do so but keep your answer very brief and guide the conversation away from the subject. The interviewer may not have intended to be discriminatory so it is important not to respond in a hostile manner and remain composed and professional in your response.
However, if your interview is peppered with illegal questions and handled in a very unprofessional manner, you should refuse to answer as this should tell you that they are clearly unaware of the law and acting both unethically and inappropriately, so why would you want to work for them?