Interviewing new staff? Here’s our tips to keep you on the right side of the law

Interviewing job applicants can be a veritable legal minefield. How do you know what you can and can’t ask? How do you find the best applicant for the job without asking discriminatory or unlawful questions?

Taylor & Scott Lawyers are experts in providing employer and employee legal services and advice. When navigating the legal ramifications of hiring staff, follow their interview tips to find the right candidate without asking the wrong questions.

The job description

Ensure the essential criteria in your job description accurately reflects the requirements of the position so that you can assess your applicants’ skills, attributes and experience against them. For example, if your job requires someone to crawl inside roof cavities, state in the job description that the demonstrated physical ability to work within tight, enclosed spaces is essential.  This can be used to assess which candidates have the capabilities you require, without discriminating based on age, disability or physical build. You must ensure you don’t make assumptions, and you should make this determination by asking questions such as ‘do you have recent experience working inside tight and confined spaces?’

The interview environment

Consider your interview location from an equity perspective. For example, a candidate who uses a wheelchair could be the best candidate for the job – so provide and interview location that is wheelchair accessible.

If you are interviewing someone with a disability, it can be useful to familiarise yourself with the Commonwealth Disability Discrimination Act 1992 and State legislation like the Anti-Discrimination Act 1977 beforehand. It is appropriate to ask questions at interview about the potential impact of someone’s disability on their ability to do the job but focus your questions on the nature of the disability in relation to the requirements of the position and ask how the applicant can illustrate their ability to perform the required duties. If you do this, you also need to ask what supports or reasonable adjustments to the role or the working environment they may require to accommodate them and ensure they are not disadvantaged compared with other employees who do not have a disability.

Word your interview questions appropriately

Often, it’s not that you can’t ascertain certain matters that may impact on the applicant’s ability to do the job, it’s the way you ask the questions. You also need to focus on what a person’s skills will be, not what you assume they will be. For example, depending on the job, you can ask about a person’s written and oral language skills – but you should not ask about a person’s ethnicity because you assume such a person will have poor language skills.

As another example, if the job requires it you can ask if the candidate would be available to work during school holidays. You should not simply ask if a candidate has children and assume they will be unavailable.

Avoid asking about ethnicity and religion

You should not ask about someone’s ethnicity or religion during an interview, unless they are issues that pertain specifically to the role. A person’s ethnicity or religion is not relevant to how well they will perform their role. However, if you are interviewing for a religion teacher in a Catholic school it might be appropriate to ask about their religion. It is not discriminatory to ascertain someone’s suitability for a role by asking about the conditions of their work visa or eligibility to work in Australia, for example, or if they are able to work all of the days that the role requires, such as during religious holidays.

Asking about marital status and sexual preferences are no-go zones

An applicant’s marital status and sexual preferences are irrelevant to their ability to perform the duties of the role, so steer clear of these subjects.

You cannot ask about gender or age

Wording your interview questions wisely can help you to determine whether someone’s gender or age may impact upon their ability to perform the required duties. Often, assumptions are made that are misplaced. If longevity in the role is something you need, ask what the candidate’s long-term career goals are.

Stay away from gender-based questions but do ask what skills the applicant can bring to the role and what applicable experience they may have.  You might be surprised.

Do not ask about previous workers’ compensation claims, illness or injury

While you do need to know if they are physically up to the demands of the role, do not ask if they have previous workers’ compensation claims, injuries or have taken extensive sick leave. Instead, word your questions positively, such as ‘this role is physically demanding and includes heavy lifting. How have you managed that in the past and how do you think you will cope with these demands in the future?’

Above all, do not make assumptions based on ability, age, race, gender or lifestyle choices. Ask thoughtful questions pertaining to the candidates’ abilities to meet the requirements of the job description and demonstrate fairness and equity by providing an interview environment which is inclusive to all.

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