Don’t Go There! Top 5 Questions to Avoid in Job Interviews

The job interview is the age old process of getting to know a potential employee in order to judge whether they would be a suitable fit for the role for which they have applied and for your organisation more generally.

Job interviews are a potential minefield from a legal risk perspective. Interviewers need to find out pertinent information about the candidate that could affect their ability to perform the job. But interviewers often stray into questions or comments on matters not linked to the ability to perform the job. The danger with such questioning is that it can be perceived as showing a form of bias, and could lead to an unsuccessful candidate bringing, amongst other potential actions, a discrimination or adverse action claim.

Here are five types of questions that we recommend interviewers avoid asking during a job interview – even if the intention in asking the question is purely conversational.

1. “How old are you?”

The potential for an age discrimination claim arises irrespective of where a candidate falls on the age spectrum – whether it is a school leaver looking for their first job or more mature worker looking to extend their working life. It is the qualifications and experience of the candidate relative to the inherent requirements of the role that are relevant, not their age.

2. “Are you pregnant?”/“Do you plan to start a family shortly?”/“Do you have any children?

No matter why you may ask this this type of question, it could be construed as potentially discriminatory based on grounds such as pregnancy and carer’s or family responsibilities.Under sex discrimination legislation it is unlawful to ask a woman during a job interview whether she is pregnant or intends to become pregnant if that information is requested in connection with determining whether to offer her employment. If you are seeking to determine whether a candidate’s actual or potential commitments outside of work may impact on their ability to perform a role, it is better to frame it instead by saying: “This role will, from time-to-time, require late nights at the office, weekend work or travel interstate or overseas. Would you have any difficulty meeting this requirement?”

3. “Do you have any health problems?”

Asking such a vague question that focuses on the applicant’s personal attributes could potentially lead to a discrimination claim on the ground of disability/impairment. The real purpose of this question is (or should be) to determine whether the applicant can perform the inherent requirements of the job, and what reasonable adjustments might enable the person to meet those requirements. Instead, the interview should ask something along the lines of: “This position involves some heavy lifting. Would you have any trouble performing this type of work?”

4. “Are you married?” or “Do you have a partner?”

Where there is no link that can be reasonably drawn between the answer to these questions and a requirement of a job, these questions should not be asked. Marital or domestic status is a protected ground of discrimination, and such questions may also give rise to discrimination claims on the basis of sexual orientation or preference.

5. “I detect a [insert country]’s accent, whereabouts are you from?”

In most circumstances, the nationality or ethnic origin of a candidate is irrelevant to their ability to perform the inherent requirements a role. As such, this question may open up the interviewer up to a claim of discrimination based on those grounds. If nationality or ethnic origin is relevant to the inherent requirements of a particular role, that is best disclosed in the advertisement for the role and must be justifiable in the circumstances.

While poorly or clumsily worded questions can lead to potential legal troubles, it is also important that those responsible for your recruitment feel comfortable in conducting interviews so your organisation has available to it all the relevant information about a candidate to inform your decision making regarding recruitment

At PCS we can work with you and your team to prepare for interviews to minimise the risks in the recruitment and selection process.

Turnbull v Abbott: making change, from politics to the workplace

This morning, Australians are waking up to yet another change in our country’s leadership. Having succeeded in his bid to become Australia’s next Prime Minister, what questions should Malcolm Turnbull and his new Government be asking itself going forward? Perhaps surprisingly, the lessons for new leaders (or newly appointed heads of organisations) might not be that different.

What can and what can’t we do?

Political parties, like all organisations, are about more than just the leader. Views on change will differ and there may be some resistance. In moving forward, leaders must be able to analyse and understand their strategic disadvantages.

What are people thinking and why?

Change can make people nervous, whether it be in the form of a new Prime Minister or potential redundancies in a workplace. Leaders must communicate, often to the point of boredom, to ensure they understand and are understood by others.

Where do we need to go?

Just as when a political party replaces its leader, when an organisation changes its management, there will be questions about its future direction. A clear and well-planned vision of that direction is essential to success.

How will this affect how people interact with each other and us? 

Champions of change must ensure they know their stakeholders inside and out so they can manage the effect of change on internal and external interactions.

It’s clear that these questions are not peculiar to politics. Rather, they are the questions that confront any organisation attempting to implement change, and those that will be fleshed out by our expert panel on 12 November 2015 at the annual PCS Hypothetical.

Register now to ensure you’re there to learn how to be ahead of the game when it comes to organisational change.

Are restraints of trade anti-competitive?

Late last year, the Supreme Court of Tasmania (in Bulk Frozen Foods Pty Ltd v Excell [2014] TASSC 58) upheld a restraint of trade which imposed on the Defendant a total of 8,190 separate non-compete covenants. On one argument, this decision is yet another that demonstrates the anti-competitive nature of restraints of trade. However, this argument needs to be balanced against the need for employers to prevent employees using information and knowledge gained during the course of employment when those employees leave the organisation.

Contrary to the argument that restraints of trade are anti-competitive, the Tasmanian decision demonstrates the need for employers to frame restraints as more than mere fetters on competition in order to have them upheld.

Non-compete restraints will not be upheld unless they protect a “legitimate interest” of the employer. An employer’s “legitimate interests” are those it has in, for example, its confidential information, customer connections and goodwill.

Restraints that cannot be said to reasonably protect one of these interests will not be enforced. Further, Courts have repeatedly emphasised that non-compete clauses are only enforceable if they do no more than is necessary to protect the employer’s legitimate interests. This means close attention is paid to the scope of the restraint in terms of:

  • prohibited activities;
  • time; and
  • geography.

A restraint will be unenforceable to the extent that it goes beyond what is necessary in these respects.

The appropriate scope of a restraint is always dependent on the nature of the employment concerned. For example, in general terms:

  • executive employees with access to highly confidential information may usually be restrained for longer than non-executive employees; and
  • employees who act as the “human face” of an organisation may generally be subject to more restrictive non-solicitation restraints.

Lessons for employers

Courts have recognised that, in some instances, non-compete restraints, going above and beyond traditional non-solicitation and confidential information restraints, are reasonable means by which an employer is entitled to protect its legitimate interests. However, in order to have such restraints enforced, it is imperative that they are framed properly so as to avoid falling foul of the rule that restraints must not be merely anti-competitive.

International Women’s Day: Make It Happen

International Women’s Day is celebrated internationally on 8 March each year. It is a day for recognising women’s achievements but also for acknowledging barriers that women face in achieving “gender equality”. From the workplace perspective, goals for gender equality for women include:

  • Increasing participation generally, but also across particular industries;
  • Achieving pay equity;
  • Ensuring the number of women in leadership positions increases; and
  • Eradicating discrimination and harassment against women.

The 2015 International Women’s Day theme is “Make It Happen”. It is timely to reflect on practical ways in which we can make gender equality happen in the workplace:

  1. Make it a goal – the most senior levels of management can consciously recognise gender equality as part of corporate strategy. This applies equally for both larger organisations and smaller organisations. Depending on the management structure of an organisation, it may require enlisting men to positively champion the rights of women in the workforce.
  2. Be proactive – identify actual instances of and risk factors for gender inequality in the workplace. This could be achieved in a number of ways such as through targeted reviews, staff surveys or workgroup meetings. Once problem areas are identified, remedial action can be taken.
  3. Review recruitment and promotion processes – are they fair and equitable? Consider indirect or “hidden” requirements that may discriminate against women.
  4. Carefully consider how flexible work practices can be achieved – this is relevant not only to women returning to work from parental leave or who have individuals to care for, but also to their partners who may have carer responsibilities while women work. It is also relevant to women who may be discriminated against for other reasons, such disability.
  5. Aim to eliminate all forms of discrimination and sexual harassment in the workplace – discrimination against women can be based on a range of grounds, including sex, family/carer responsibilities, age, domestic violence, disability, race and pregnancy. An organisation can guard against discrimination and harassment through a combination of measures including policies, procedures, employment contracts, training and taking remedial action when an issue does arise.
  6. Think outside the square – there are always different ways to do things and just because they haven’t been done that way before, it doesn’t mean they shouldn’t.