The questions that are asked in a job interview are crucial in helping to identify the right person for the job. However, it’s just as important to know what things can’t be asked in an interview so that you don’t fall on the wrong side of the law.
Discrimination law prohibits certain questions
Under the Fair Work Act, there are several things about candidates that can’t be asked because they’re discriminatory. Each state also has their own equal opportunity or discrimination legislation that prohibits certain information being asked in an interview. The only exception to these laws is if the information is reasonably required for a purpose that isn’t discriminatory.
Some questions that are prohibited under discrimination law include asking someone if they have or are planning on having children, whether they are married, what their religion is, their sexuality, race or ethnicity. There is an exception to the race and ethnicity discrimination if a role requires someone to have a cultural connection of significance. For example, it’s common to see roles that are advertised as preferring someone with a cultural connection with Aboriginal or Torres Strait Islander heritage.
A prospective employer is also prohibited from asking a candidate about any medical conditions or a person’s health unless it is directly related to the industry or the candidate’s ability to perform the role. However, some employers may require candidates to have a health assessment. This is allowable if it is necessary for the candidate to be fit to perform the role.
Some employers may also want to know if a candidate has filed a workers’ compensation claim before, but this may also be considered to be discrimination. This is because a prior workers’ compensation claim may imply that the candidate has an illness or disability.
Finally, a prospective employer cannot ask a candidate if they belong to a union.
Things you can and should ask
There are some personal questions that are important to ask in an interview, like whether someone has the right to work in Australia. Not only can a prospective employer ask this question, but they can also request proof of someone’s status to work in Australia.
Many prospective employers review people’s public social media pages before interviewing them and this is also within the letter of the law. However, they cannot require someone to give them access to their private account or their passwords.
Another common question that prospective employers often want to ask is whether a candidate has a criminal record or to perform a criminal history check. While this is not against Federal law, some states in Australia do prohibit it or restrict how the information can be used. For example, if a candidate has a criminal conviction that has nothing to do with the role, like a traffic offence, then the employer can not take it into consideration when deciding whether they get the role.
Another anomaly in the law exists if you want to ask someone their age or request proof. An employer can and should ask this only if the candidate must be of a particular age to perform their job. For example, if the role requires the candidate to serve alcohol they must be over 18 years of age.
Similarly, drug and alcohol use is another thing that an employer may want to know about a candidate. This is generally prohibited unless it’s directly relevant to the role. For example, if someone is required to drive a vehicle as part of their role then drug and alcohol use may be relevant.
Conducting interviews aren’t always straightforward. If you’d like guidance on how to conduct an interview, partner with an agency who can guide you every step of the way.
