Adverse Action

Any discriminatory questions should be avoided during the interview process; including any questions relating to age, marital status, sexual preference, pregnancy, sexual or gender identity, ethnicity, religion, disability etc. If the candidate volunteers this information, that’s fine, but you should not ask.

If you are worried about whether a Mum with small children will be able to work certain hours and/or from home; you can ask if the candidate has any family or caring responsibilities that would impact their ability to meet the requirements of the role. This addresses your query, without the question being focused on stereotypical assumptions about mothers; as there could be a candidate of any age or gender who struggles with the role requirements because of child minding, disability or other carer responsibilities.

Take the time to plan your interview questions in advance, so that you can think about how to get the information you need without referring to any discriminatory terms.

Once you make an offer; if you were to then withdraw that offer of employment the candidate could claim Adverse Action if they believe the withdrawal of offer was based on a discriminatory reason.

It is therefore important to make it clear in your job ads the minimum requirements of the role and include a Background Checks clause in your contracts of employment. This way, if you withdraw an employment offer because the candidate is unable to meet the inherent requirements, this will mitigate any risk of a claim of discrimination or adverse action.

If you need assistance putting together interview questions, job ads, or employment contracts that reduce your business risk from Adverse Action claims; we are here to help...