The Law Shop is now closed. Please click here to find out more.

Points of interview – what prospective employers can't ask

Luke Whitmore - Law on the Web

  1. 22 August 2013
  2. Employment
  3. 0 comments
A job interview

With the economy in its current woeful state, most people would consider themselves lucky even to land an interview – and once you sit down to be judged by a prospective employer, it can certainly feel like they’re the one holding all the cards.

However, it’s important to remember that this doesn’t give them the right to probe into your personal life and quiz you on every aspect of your very being – and there are actually a lot of questions which it’s illegal for them to ask a candidate during a job interview.

The rules on exactly what you can be asked during an interview are, like most aspects of employment law, a balancing act between letting the employer run their business and ensuring that candidates are not treated unfairly. Most of these rules, set out in the Equality Act 2010, are designed to ensure that potential employees are not discriminated against for traits which are unrelated to the job at hand – but in some cases, employers tread a very fine line between trying to find the right person for the role and potentially discriminating against someone.

Because it can be very difficult to actually prove that discrimination occurred, interviewers are required to avoid these topics as much as possible. This is because, if these topics do come up, it can be impossible for you to tell whether you weren’t selected for a job based on not being the best candidate or for other, more malign reasons. The law is likely to err on your side in such situations.

Disability and health

One of the areas in which employers often fall foul of the law is by asking candidates about illness or disability. It is actually illegal for an interviewer to ask you how many sick days you took during your previous job, let alone quizzing you on your state of health.

Of course, you may be asked, quite legally, about whether you are able to perform the role in question, whether this is affected by disability, sickness or your general state of fitness as a whole. So, for example, they might enquire as to whether you can lift a certain amount of weight, or be on your feet all day, when these are necessary components of the role – but they cannot ask more general questions about your health and make assumptions based on these.

It’s also important to note that people with disabilities can expect “reasonable adjustments” to be made to a role to accommodate particular needs they may have, and employers are required to keep this in mind when they decide what is really necessary for the role. If they claim that you must be able to do certain things to perform a role, when actually those things are only peripheral to the job and could be mitigated with, for example, modifications to the premises or the purchase of special equipment, they may actually be discriminating against disabled people.

Marital status and children

It’s illegal for an interviewer to ask you whether you are married or if you have children or are planning to start a family. This is of particular concern to women whom employers may fear will get pregnant and go on maternity leave at some undefined future point, or anyone who already has children who may be looked upon as being too tied down to out-of-work responsibilities.

Again, employers may make a more direct enquiry about your suitability for a role by asking if you are able to undertake certain work-related activities which those with children may blanch at – for example, they could question you on whether you are able to work overtime or go on business trips – but they are not permitted simply to ask about your family situation and make a presumptuous decision based on this.

Race, ethnicity and language

In an age in which the law strives to do away with discrimination, it should come as no surprise that prospective employers are not allowed to question people about their race or ethnicity simply because they see them as different in some way. An interviewer should not ask you any questions on this topic, even cloaked in the guise of asking for your native language or whether you are a UK citizen.

It is understandable, of course, that employers need to know whether an individual is authorised to work in the UK, but they should simply ask this as a question rather than skirting around the topic with technically irrelevant questions of citizenship or birthplace – and they should ask the question of all candidates as a matter of course.

Language concerns can be dealt with in a similar way – there are roles which will require you to have a strong grasp of a certain language or languages, but it should be of no concern to the interviewer how you learned the language and whether you are a native speaker or not, but simply whether or not you are fluent.

Religion and politics

Interviews should not ask about your religion for any reason, or enquire as to whether you belong to a trade union or any organisation that might reveal political or religious leanings.

The only valid reason for an employer to want to know your religion would be if it might preclude you from certain duties of the role or if they want to know if you may be unavailable on particular days of the week. However, as with other such protected characteristics, they should simply ask all candidates directly about the aspects of the job in question – asking what days you are available or if you are happy to deal with certain products will not put them in breach of the law.


Finding a job can be tough for older people, who may find that employers are looking for younger staff who they believe will work for a lower salary and won’t be looking to retire soon. In an attempt to prevent discrimination on this basis, interviewers are prohibited from asking prospective employees their age or even their date of birth. They cannot ask how long you intend to work before retiring, either.

Some employers claim that they need to know an applicant’s age so they can ensure that people aren’t too young to work for them, but clearly this is served equally as well by asking if you are over the required age, rather than needing to know specifics.

Past convictions

It can be very difficult for people with criminal activity in their past to find jobs. To ensure that a blemish on your record does not taint your opportunities forever, however, some criminal convictions will become ‘spent’ after a certain period of time – meaning that you are no longer required to disclose them when submitting a job application or when being interviewed.

This means that you cannot be asked about any spent convictions during an interview, and interviewers who quiz you on this topic are likely to find themselves in breach of the law. They should not really ask you any questions about convictions unless they are likely to be relevant to the role. If you are asked if you have a criminal record but your only convictions are spent, you can answer no.

There are some exemptions to this law, as laid out in the Rehabilitation of Offenders Act 1974. These relate to roles which involve working with vulnerable people or in high-security environments, in which case even spent convictions must be disclosed. Sentences which last for over 2.5 years also never become spent.

Gender and sexuality

It seems preposterous that these should even come into it, as unlike some of the other categories there is no reason that a person should be seen as unsuited to a job due to anything related to their gender or sexuality. However, many interviewers still discriminate in this area, even if inadvertently or in a seemingly harmless way.

Needless to say, you should not have to deal with enquiries about whether or not you think you can do a job always handled by a person of the opposite gender in the past, or whether you consider yourself able to work alongside men or women – questioning your suitability for the role based on your gender is a clear-cut case of discrimination.

You should also not be asked about your sexuality, or whether you have had, are having or are planning to have sex reassignment surgery.

Discrimination claims

If you have had any of these questionable questions asked of you in an interview, you may find that you have little desire to be employed by such a company anyway. Nonetheless, it could be possible to bring a claim against the employer for discriminating against you under the Equality Act 2010.

Your first step will likely be to submit a discrimination questionnaire to the employer requesting details of exactly what information was used during the recruitment procedure and how it affected people’s viability for the role. Information on the complaints process can be found on the official government website.

Share your experiences

Please note: The views expressed in community areas of this site do not necessarily reflect or represent the views of Law on the Web, its owners, its staff or contributors. All comments are moderated prior to publication.

comments powered by Disqus