13 November 2006

During an interview process we all expect the candidate to be fretting over what they are going to say when actually interviewers probably have more to worry about. For an employer the consequences of the interviewer saying the wrong thing could be a costly discrimination claim or lead to a breach of contract. Making sure that those conducting the interview know exactly "what" and "how" to communicate is essential preparation.

Before any interview takes place a standard set of questions should be compiled based on the requirements of the role. Questions relating to personal circumstances should be avoided unless strictly necessary and, if then, must be phrased carefully so as to avoid being discriminatory. For example, it is not usually necessary to ask if someone is married or has children although it may be relevant to find out if the candidate is able to work overtime when required. To find this out a non-discriminatory question can be asked such as, "Do you have any commitments, which would prevent you from working additional hours at short notice?" However, it will still be discriminatory if this question is put only to any women who apply on the assumption that they are more likely to have child care commitments. To avoid discrimination the same questions must be asked of all candidates.

In Corus Hotels plc v Woodward & Anor (2006) a female candidate was awarded £4,000 for injury to feelings on the basis of questions asked at interview, which implied that she would not be able to hold down the job because she had children. As well as sex discrimination, questions can be held to be discriminatory on the grounds of sexual orientation, race, religion, age or disability. Some other examples of the types of questions not to ask are:

• Were you born with this condition?
• What country are you originally from?
• How old are you?
• How do you feel about having a manager who is younger than you?

The selection process itself can also be discriminatory and this is particularly relevant to candidates with a disability, where the employer has a duty to make reasonable adjustments. Candidates who have a hearing impairment or a speech impediment will be put at a disadvantage by an interview and alternative means of communication will need to be considered. Reasonable adjustments could be obtaining the aid of a sign language interpreter or lip speaker or using a written interview format instead.

It is a big mistake for interviewers to oversell the role. This will result in a de-motivated employee and could lead to a misrepresentation claim. A candidate who subsequently accepts an offer of employment may seek to rely on anything mentioned during their interview. To avoid this happening it is advisable to state in the offer letter or contract of employment that the employee has not relied on any oral or written representations which are not contained in the offer letter or contract.

Offers of employment should be made in writing to ensure that any conditions, such as a requirement for satisfactory references, are properly communicated. Verbal offers, although difficult to prove, can still be legally binding if the offer is accepted. An offer of employment can only be withdrawn before it is accepted. Once accepted a contract of employment will exist and the only way for the employer to terminate the contract is to give the employee the agreed contractual notice.

The price to pay for an inadvertent, or deliberate, slip of the tongue could be a high financial penalty, with unlimited compensation awards in discrimination claims. However, the employer’s reputation is also at stake. A bad experience is normally recounted more often than a good one.