30 Aug Interview questions that could cost you a tribunal claim
Advice from an HR consultant in Wychavon on the interview questions you need to stop asking before they land you in legal trouble.
I work with a lot of small business owners who run their own interviews. Most of them are good at reading people and picking the right fit.
But I regularly see the same problem. Casual questions that feel perfectly normal are actually putting them at serious legal risk.
The tricky part is that your intentions don’t matter. A tribunal won’t care that you were just making conversation.
Here’s what you need to know and what to do instead.
What to say instead of risky questions
Before I get into the detail of what can go wrong, let me give you the practical fixes. If you’re short on time, this is the section to read.
Questions about children or family plans. Asking whether someone has kids or plans to feels like normal chat. But it touches on protected characteristics. A better approach is to focus on the actual job requirement. If the role involves evening work or travel, ask whether the candidate can accommodate that. Keep it about the role, not their personal life.
Questions about age. Asking someone’s age directly is an obvious one. But asking what year they graduated catches people out too, because it’s a proxy for age. Instead, focus your questions on relevant skills and experience without asking when they were gained.
Questions about health or disability. You can’t ask about health conditions before making a job offer. There’s a narrow exception where health is directly relevant to an intrinsic function of the role, but that’s rare. What you can do is ask whether there’s anything you’d need to put in place to support them through the interview or in the role if they’re successful.
Questions about nationality or origin. “Where are you originally from?” feels like small talk. It creates real legal risk because it relates to race and national origin. You’re perfectly entitled to ask whether someone has the right to work in the UK. That’s a legal requirement.
Questions about religion. Asking what religion someone practises, or whether they’ll need time off for religious holidays, relates to religion and belief. If you need someone to work specific days or hours, ask whether they can commit to those. Don’t ask why they might not be able to.
Why good intentions won’t protect you
Most of the business owners I speak to are genuinely surprised when I explain this. They’ve been asking these questions for years without any issues.
But the law looks at the effect on the candidate, not what was going through your mind when you asked. A tribunal will consider two things. Did the question relate to a protected characteristic? Could it have influenced your hiring decision?
If the answer to both is yes, you’ve got a problem. It doesn’t matter that you asked the question to break the ice or find common ground. A casual question carries the same legal weight as a deliberate one.
And if the candidate doesn’t get the job, they have grounds to argue that your question played a part in that outcome. Even if it genuinely didn’t.
The myth of “I was just being friendly”
I hear this a lot. “I wasn’t trying to discriminate. I was just being friendly.”
Unfortunately, that’s not a defence. Discrimination law doesn’t require intent. A friendly question about someone’s background or family situation sits in exactly the same legal territory as a pointed one.
The candidate’s experience of the question is what counts. If they felt it related to who they are rather than what they can do, that’s enough to raise a claim.
How a consistent process keeps you safe
The single best thing you can do is use a structured interview process. Prepare a set of questions in advance. Ask every candidate the same questions in the same order. Score every answer against the same criteria.
This does two important things for you.
First, it keeps you focused on what actually matters for the role. You’re less likely to drift into personal territory when you’ve got a clear framework to follow.
Second, it gives you a defensible record. If a rejected candidate ever challenges your decision, you can show exactly how you assessed them and why you chose someone else. That’s powerful evidence.
A structured process also makes it easier to spot when someone on your team has gone off-script during an interview, before it becomes a bigger issue.
As part of my HR consultancy services in Wychavon, I regularly help business owners build interview frameworks that are legally sound and practical to use. It doesn’t need to be complicated. A simple, consistent approach goes a long way.
Questions to ask yourself about your current process
It’s worth taking a few minutes to think about how your interviews actually run day to day.
- Do you have a written list of questions that every interviewer uses?
- Could you show a tribunal exactly how you scored each candidate if challenged?
- Are your managers trained on which topics to avoid during interviews?
- Would you be confident that every interview your team conducts follows the same format?
If you’re unsure about any of those, it’s worth tightening things up sooner rather than later.
Get your interview process checked
I can review your recruitment process and interview framework to make sure everything holds up legally.
It’s a straightforward piece of work that gives you real peace of mind.
As an outsourced HR consultant in Wychavon, I work with business owners who want to get things right without having to become employment law experts themselves.
If you’d like to have a conversation about how your interviews are set up, get in touch and we can arrange a discovery call. I’ll give you an honest view of where you stand and what, if anything, needs to change.
