Insight from an HR consultant in Milton Keynes on why certain interview questions put your business at serious legal risk, even when you're just being friendly.
Discrimination law changed the way interviews work, and a lot of business owners haven't caught up.
You might think a casual question about someone's background or family is just polite conversation.
It isn't. Under the law, the impact of the question is what matters. Your intention is irrelevant.
If a candidate doesn't get the role and you asked something linked to a protected characteristic, you've given them a potential claim.
Here's what you need to know and what to do about it.
Why good intentions won't protect you
A tribunal doesn't care whether you were trying to be friendly. It looks at two things: did the question touch on a protected characteristic, and could it have played a part in your hiring decision?
That's the test. A question asked with the best of intentions carries the same legal weight as one asked with bias. There's no "I didn't mean it that way" defence.
I see this with the businesses I work with. Someone on the interview panel tries to put a candidate at ease, asks a question that feels perfectly normal, and without realising it, they've created a risk. The candidate gets turned down, remembers the question, and suddenly you're dealing with a formal complaint.
Questions about children or family plans
Anything along the lines of "Do you have kids?" or "Are you thinking about starting a family?" touches on sex, pregnancy and maternity. All protected.
You might ask because you're making conversation. Perhaps you noticed a photo on their LinkedIn, or you're a parent yourself and it felt like common ground. None of that matters if the candidate is rejected.
What you can do instead is focus on the actual requirements of the role. If the job involves travel or evening commitments, ask whether the candidate can accommodate those specific demands. That's a question about capability, not about their personal life.
Questions about age
Asking someone how old they are is an obvious one, but plenty of interviewers trip up on a less obvious version: "What year did you finish university?" or "When did you qualify?"
Graduation dates are a proxy for age. They carry the same risk.
Keep your questions focused on what experience and skills the person has. How long ago they gained them isn't relevant to whether they can do the job.
Questions about health or disability
You're not allowed to ask about health conditions or disabilities before making a job offer. The only exception is where a specific health requirement is genuinely essential to an intrinsic function of the role, and that's rare.
A better approach is to ask whether the candidate needs any adjustments to support them during the interview process, or in the role if they're successful. That shows you're inclusive and it keeps you on the right side of the law.
Questions about where someone is from
"Where are you originally from?" feels like small talk. It relates to race and national origin, both of which are protected characteristics. As part of our HR consultancy services in Milton Keynes, I've seen how easily this one catches people out.
The question you're actually allowed to ask is whether the candidate has the right to work in the UK. That's a legal requirement and it's entirely appropriate.
Questions about religion or belief
Asking what religion someone practises, or whether they'll need time off for religious holidays, links directly to the protected characteristic of religion and belief.
If the role has specific working days or hours, frame your question around that. Ask whether the candidate can commit to the schedule the role requires. You get the information you need without touching on their personal beliefs.
How a structured process keeps you safe
The single best thing you can do is build structure into your interviews.
Prepare a set list of questions. Ask every candidate the same questions in the same order. Score every answer against the same criteria.
That consistency does two important things. It keeps the conversation focused on what actually matters for the role. And it gives you a clear, documented record you can rely on if a rejected candidate ever challenges your decision.
A structured approach also makes it far easier to spot when an interviewer has wandered into risky territory. If someone deviates from the agreed questions, you'll notice it during the process rather than finding out later when a complaint arrives.
Questions to ask yourself about your current process
Before your next round of interviews, it's worth thinking about a few things:
➡️Do you have a written set of questions that every interviewer follows, or does each person run their interviews differently?
➡️Have your managers been briefed on which topics are off limits during interviews?
➡️If a rejected candidate asked to see your interview notes, would those notes clearly show that your decision was based on skills and experience?
➡️Are you confident that the informal chat before or after the formal interview isn't creating risk?
If you're unsure about any of these, that's a sign your process could do with a review.
I work with small and medium-sized businesses to review their recruitment processes and interview frameworks.
The goal is straightforward: make sure your process is legally compliant and gives you the best chance of finding the right person.
As an outsourced HR consultant providing a support in Milton Keynes and London, I can look at what you're currently doing, identify any gaps, and help you put a solid structure in place.
If you're not confident your interviews are watertight, get in touch and let's have a conversation about how to tighten things up.
Get in touch and we can talk it through. You can book a discovery call and we'll look at where you are now and what needs to happen next. 📱 0781 3084152 or email 📧 daxa@hrresultsltd.co.uk Taking your HR from 'to do' to 'done'.
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