What You Can and Cannot Ask in Job Applications and Interviews

The recruitment process, from the job advert to the interview, is full of legal pitfalls if handled incorrectly. Asking the wrong question or phrasing the job criteria poorly can lead to discrimination claims, even if the applicant is never hired. This is because there is no qualifying period of service for a discrimination claim.

In this article trainee solicitor, Francesca Jibodu, explores what employers can and cannot ask both on application forms and interviews and considers the consequences of getting it wrong.

The Equality Act 2010

The Equality Act 2010 protects individuals from discrimination throughout the recruitment process including:

• Application forms
• Job descriptions and adverts
• Interview questions
• Selection criteria
• Decision-making and feedback

An individual does not need to be a current or former employee to bring a claim. If they can show they were treated unfairly during the recruitment process due to a protected characteristic, they may be able to bring a claim for discrimination. In discrimination cases, there is no cap on the amount of compensation that can be awarded by an Employment Tribunal. 

Protected characteristics include:

• Age
• Disability
• Gender reassignment
• Marriage or civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Risky Application and Criteria Questions

Requesting Date of Birth / Graduation Year

• Risk: Could suggest age discrimination
• Best Practice: Ask whether the applicant is over 16 (if relevant).

Specifying a Requisite Number of Years’ Experience

• Risk: May disadvantage younger applicants without justification.
• Best practice: Focus on required skills and competencies, not time served.

Asking about health or disability

• Risk: Generally unlawful under s.60 of the Equality Act 2010.
• Exception: You may ask whether the applicant requires adjustments for the recruitment process.

Specifying the Applicant Must Be “Energetic” or “Dynamic”

• Risk: May indirectly discriminate based on age or disability.
• Best practice: Use neutral, skill-based language e.g. “able to manage a varied workload”.

Optional diversity questions without explanation

• Risk: Without a proper privacy statement or purpose, even optional questions may deter applicants and raise suspicion.
• Best practice: Separate equality monitoring forms from the application and explain why data is being collected.

Interview Questions to Avoid

• Do you have children? Could indicate sex or pregnancy discrimination.
• Are you intending on having children? Discriminatory if it affects hiring decisions.
• Where are you originally from? Could be seen as race or nationality discrimination.
• Are you religious? Or will your beliefs affect your work? Religion and belief are protected characteristics.
• Do you have any health conditions? Disability-related questions are generally prohibited before an offer is made.

What You can Ask

On the application form:

• Eligibility to work in the UK
• Criminal records (only where relevant and lawful to ask)
• Reasonable adjustments needed to attend interview

In interviews:

• “Are you able to perform the core duties of this role?”
• “This role involves shift work. Are you able to commit to that pattern?”
• “Do you need any adjustments for the interview process?”

The focus should be on capability, not assumptions or preconceptions.

Relevant Case Law: Fong Fong Lee v R&F Properties (2024)

In this case, the Claimant was offered a senior marketing role. During a post-offer video call, the company’s vice president enquired about the ages of her children. Days later, the offer was withdrawn without explanation.

The Claimant was awarded £91,597.82 after an Employment Tribunal found the company guilty of discrimination on the grounds of sex.

This case highlights poorly timed questions unrelated to capability can have serious implications.

Tips for Employers

• Use standardised application forms across all roles
• Train hiring managers on discrimination risks
• Remove personal questions from the recruitment process
• Keep detailed, objective records of decision-making
• Avoid informal interviews that veer off-script
• Separate equality monitoring from application forms

Conclusion

Discrimination claims can arise before employment begins. The application form and interview are not just tools to assess a candidate’s suitability for employment, they are also legal documents in the eyes of a Tribunal.

Getting recruitment right throughout the process ensures fairness and protects your organisation from reputational and financial risk.

At Pinney Talfourd LLP, we regularly advise both employers and employees on discrimination matters. If you require support in reviewing your recruitment processes or would like advice on any aspect arising out of this article, please contact a member of our Employment Team.