Flexibility and discrimination

The asking of private or personal questions at interview, particularly concerning a job applicant’s family responsibilities or ethnic background, can constitute sex or race discrimination should the applicant subsequently not be offered a job.

Tribunals may draw inferences as to why such questions were asked, both as to the subconscious prejudices of the employer and the potentially discriminatory way in which the answers to such questions are treated. A general rule, therefore, has grown up that one should only ask questions directly relevant to the job at interview.

Tribunals have made it clear, however, that while questions concerning an applicant’s "family plans" are likely to be viewed by a tribunal as being intended to find out whether female applicants are likely to become pregnant in the near future (and are thus discriminatory), not all questions concerning pregnancy at recruitment interviews will be automatically unlawful. But it is important for employers to note that questions concerning "family plans" are not automatically saved from being unlawful merely by the employer asking male applicants about these issues in the same detail.

Questions about the likelihood of an employee becoming pregnant might be lawful where there are particular health and safety aspects of the job in question which would render it unsuitable for a pregnant woman. Even so, such questions should relate purely to complying with health and safety obligations.

Some years ago, employers were stunned at the decision of the ECJ in the Dekker case, which made it clear that it would be unlawful direct sex discrimination to turn down a female applicant for a permanent post where she was the best candidate only because she was pregnant. While later cases made it clear that there would be some circumstances in which employers could legitimately refuse a job applicant for taking up a short-term fixed period appointment (such as where staff are taken on specifically to deal with the Christmas surge), the Dekker position remains.

In relation to questions at interview, however, there has been a bit of a backlash against this "pure" position, and individual tribunals have taken more lenient views in cases which they believe are deserving. Thus, for example, in the Norris case, a north London tribunal made it clear that in its view an employer could ask questions about childcare to satisfy itself that the prospective employee could make proper childcare arrangements which would enable her to engage fully and properly in the task for which the employer proposed to employ her.

It should immediately be said that this both represents the high watermark for employer flexibility and that tribunals are not bound by this decision in the future. Nevertheless, it demonstrates a somewhat more practical attitude.