You can’t ask that! The interview questions which feel illegal (because they are)

Freya Lucas

Apr 26, 2023

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While job interviews are a great way for early childhood education and care (ECEC) services to get to know prospective employees, there are some questions which, by law, cannot be asked of candidates.

There are some questions which seem innocent on the surface, such as “tell me about your family”, but which could see employers being accused of discrimination.

In the piece below we discuss some of the common pitfalls when it comes to interviews, and suggest ways in which these can be avoided.

A blanket rule, however, is: avoid questions which seek information beyond what is relevant for the job role.

A job interview is a great way to work out how suitable a candidate is for a particular role. But what kinds of questions are recruiters and employers legally allowed to ask?

What questions should interviewers ask?

Questions that relate to the candidates ability to perform the key aspects of the job role are important parts of the job interview. Examples include:

Can you give me some insights about how you meet children’s interests in your programing?

How might you respond to a parent who is concerned about their child’s development?

What is your understanding of the National Quality Framework?

What questions should interviewers avoid?

Any question which may reveal information about a prospective employee's characteristics such as their age, gender, ethnicity or sexuality can be unlawful, because their responses to these questions leave space for accusations of discrimination, should the employee not be hired.

A person's age, gender, ethnicity or sexuality has no direct impact on their capacity to perform in a role.

It is also unlawful to discriminate against a prospective employee on the basis of their physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Questions which concern these factors, or which press an employee to provide information about these factors could be unlawful, and are best avoided.

Common examples of how this plays out in ECEC

The questions below are commonly presented to applicants in ECEC interviews, but may be unlawful. Examples include:

Question: “We find parents in the nursery room respond best to more experienced educators who have their own children. Do you have children?”What to say instead: “How would you respond to a parent in the nursery room who was concerned about your level of experience when it comes to caring for their child?”Question: “We need someone to commit to late shifts three times a week. Have you arranged after school care for your children?” What to say instead: “Our team shares early and late shifts on a rotating roster, are you able to commit to working all the opening hours we have available?”Question: “Some of the families in the preschool room have been upset in the past because our previous early childhood teacher was a new graduate, and they didn’t feel she focused enough on school readiness because she was too young. Do you mind me asking how old you are?” What to say instead: Nothing. Question: “Do you have any injuries or illnesses we need to know about?”What to say instead: “Is there any reason you may not be able to complete the duties listed in the job description?”

Employers should seek their own advice

Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such.

ECEC services should make their own inquiries and seek independent advice (including the appropriate legal advice) on whether the suggestions provided in this piece are suitable for their circumstances.

Services should access external information sources, such as the Australian Human Rights Commission, the Fair Work Ombudsman, and other reputable sites to conduct their own research.

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