6. Avoiding discriminatory questions
Discrimination can take place in the following circumstances.
A job applicant is subjected to interview questions that have an underlying discriminatory impact, for example questions put to a woman about her children or childcare arrangements.
A question put to a job applicant implies that the interviewer thinks there may be a problem. An example could be where a question such as 'would you have a problem working on Saturdays?' is asked specifically because the interviewer has deduced (or assumed) that the candidate is Jewish. Such a question could be viewed as directly discriminatory on grounds of religion.
Negative assumptions are made about the applicant on the basis of the answers given to the above types of questions.
An applicant who is pregnant is asked questions about plans for maternity leave, childcare, etc.
Candidates should not be asked questions about:
· their relationship status or marriage plans;
· childcare arrangements;
· general family commitments and/or domestic arrangements;
· actual or potential pregnancy/maternity leave;
· their partner's occupation and mobility;
· any actual or potential absences from work for family reasons.
Employment tribunals have consistently taken the view that such questions, if asked of a female candidate, indicate an intention to discriminate (whether conscious or not). This is because questions of this type are usually rooted in an assumption that childcare and other family commitments may have a negative impact on a woman's commitment to the job, attendance or availability to work overtime.
Instead, questions that explore the applicant's ability to perform the job should be asked.
Don't say | Do say |
Are you planning to get married/have a family in the next few years? | What are your general aims and goals over the next three/five years? |
Who would look after your children if you were asked to travel away from home on a business trip? | The job would involve travelling away on business trips approximately [x] times a year. To what extent would you be able to comply with this? |
If we needed you to work late at short notice, how would this affect your childcare arrangements? | The job might occasionally require you to work late at short notice. How would you respond if asked to do this? |
How would your partner feel if we asked you to relocate to a different branch of the company? | How would you feel if we asked you to relocate to a different branch of the company? |
Ultimately, if a job applicant who is suitable for the job in terms of skills and experience is rejected in favour of someone of the opposite sex or of a different racial group, for example, and that person can show that he or she was materially disadvantaged by the way in which the interview was conducted, he or she will have a strong argument that the selection decision was discriminatory.
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