This article has been written for employers and small businesses regarding hiring new staff, the legalities and the interview process with the potential employee.

Taking on a new team member can be a daunting task for those running their own businesses because it is so important that the candidate hired is the best possible fit for the position, not only in terms of the requirements of the actual role, but also in terms of how the potential employee will fit in to the existing team, vibe and ethos of the business.

While a job interview with a potential employee is a great opportunity to determine a candidates suitability for the role, our professional employment lawyers want you to know that it is important to be aware that there are rules and regulations pertaining to the types of questions that can be asked of candidates, including certain questions which are illegal to ask, in order to prevent them being unlawfully discriminated against.

First and foremost, it is important for hirers to keep the questions related to the candidate’s ability to perform the inherent requirements of the position.  Generally speaking, asking questions about a candidates age, gender, ethnicity or sexuality are unlawful, as these factors are not relevant to the candidate’s ability to perform a job.

Similarly, questions pertaining to physical/mental disabilities, family or carer’s responsibilities, pregnancy, marital status, religion, social origin or extraction or political opinion should be avoided as it is unlawful to discriminate against a candidate on the basis of these factors, and by asking questions about these factors, or having them raised, it could give rise to an argument or inference that these factors played a part in selecting the successful candidate.

Questions you should definitely not ask

  1. How old are you?;
  2. Do you have any children or are you wanting to have children?
  3. Are you married?
  4. Do you have any medical conditions?
  5. Are you religious?
  6. Have you ever made a claim for workers compensation?
  7. Do you use drugs or alcohol?
  8. Do you have a criminal record?
  9. Are you a member of a union?
  10. Are you currently working?

Certain exemptions can apply depending on the inherent requirements of the role (i.e. a role requiring someone to be able to drive or serve alcohol will necessarily mean the candidate must be of a certain age), however it is still recommended that the questions being asked are ‘rephrased’ so you can get the information you need without coming straight out and asking about the candidates age.  Our employment lawyers at Affinity Lawyers can help you to devise some appropriate questions should you need assistance in relation to a specific job or role that you are needing filled.

An example of rephrasing a question about the candidates age could be “this job requires an employee to hold a valid RSA or a driver’s licence, is this a problem for you?”.

Similarly, jobs that require the candidate to do heavy lifting as an inherent part of the role could be asked if they have any medical conditions which would affect their ability to lift heavy items or carry out the tasks required of the job being applied for.

Provided that the question is asked in an appropriate manner, our employment lawyers recommend that you rephrase the way that you ask questions in a way that you are able to obtain the information that you need, without putting yourself at risk of asking illegal or discriminatory questions.

I.e.; Instead of asking the potential employee directly about their children, child care or carer’s arrangements, you could say “the requirements for this position are being able to work between the hours of 9 – 5 from Monday through to Friday, would that be a problem for you?”, or, “when would you be able to start?”.  This way you are still ascertaining the availability of the candidate without being discriminatory by asking about their family situation or current work situation.

So what can you ask during the interview?

If you are really wanting to get to know how the candidate thinks, and how he or she would operate in the role, then Affinity Lawyers believes that preparing interview questions specifically designed to elicit that type of information can be very beneficial.

Behavioural or competency based questions, giving the candidate a hypothetical scenario or event and asking them to explain how they would respond to the situation, or open-ended questions to allow the candidate to go into detail in relation to their response to the question will all assist with giving you a better understanding of the candidate and a variety can be used in the one interview.

Examples of behavioural or competency based questions are:

  • Describe a time when you were faced with a stressful situation and you had to demonstrate your coping skills;
  • Provide a specific example of a work situation where you used your judgment and logic to solve a problem;
  • Provide an example of a goal that you set and how you were able to achieve it;
  • Tell me about a situation where you have to conform to a rule or policy which you did not agree with;
  • Describe how you have been able to convince someone to see things your way using persuasion;
  • Tell me about a time where you had to encourage others to put forward ideas or opinions about something in the workplace.  What did you do to get everyone to contribute and what was the outcome?;
  • Describe a situation where your communication skills were used to make a difference in an outcome. What did you learn from that experience and how did you feel?

A situational based question generally focuses on the past experiences, knowledge, abilities, behaviours and skills of the potential employee to formulate an appropriate response to a hypothetical situation.

The following is an example hypothetical situation:

  • You have been hired as the HR manager overseeing 300 employees and you are not able to keep up with the administration tasks for such a large number of employees. Your direct manager has told you that you need to be more strategic.  How would you handle this situation?

Some open ended questions which allow the candidate to give you better insight into their character could be:

  • What are you looking to gain from your next role?
  • Why do you want to work for this company?
  • Please describe your management style.

As you can see, there are a variety of ways to interview a potential empployee and get to know them a little better whilst staying within the legal bounds of what you can and can’t ask during an interview.

If you need assistance with an employee related issue or if you need advice in relation to an employment law query, please contact one of our friendly Gold Coast employment lawyers for a consultation on 07 5563 8970.