Whether you are in the recruitment industry, expanding out your business or simply need some extra casuals for Christmas, recruiting new employees is an important part of business. Not only do you want to choose the right person to become part of your team, but you also want to go about it in the right way – which is not always easy when we consider how much legislation governs this area of workplace relations.


Discrimination is one of the biggest risks when recruiting new employees. Unlike unfair dismissal, which employees only have access to after a certain length of employment service, discrimination claims can be made by any individual, whether employee or just a candidate.

It is therefore vital that the entire recruitment process promotes fairness and equality, and does not discriminate, either directly or indirectly, against a potential candidate or class of candidates.

Job Application Forms

Job application forms often contain generic questions which don’t actually pertain to the job, industry or business in question. To minimise discrimination risks, as well as increasing your chances of a successful candidate, your job application forms should be clear, unambiguous and relevant.

Questions to Avoid

Think about what you are asking, and why. For instance, you should never ask for a photo of the candidate. Why would you need one? You’re not going to hire someone based on their looks, unless it’s in the film making or photography industries where certain physical features are inherent to the role. But for most jobs, it doesn’t matter what hair or skin colour someone has.

Asking for age is a common mistake. Again, why should it matter how old a candidate is? You can ascertain a person’s experience by looking at their job history and qualifications. However, there are of course exceptions to this rule, for certain jobs which require a minimum age such as those relating to working with alcohol.

Be careful when asking about disabilities, and avoid sweeping questions relating to any and all medical or mental health conditions. Focus on what the particular role requires, and what the core duties will be. A good question might be “are you aware of any medical conditions, whether physical or mental, which may affect your ability to perform the inherent requirements of this role? If so, please describe.” This allows candidates to keep private any medical conditions that have no bearing on their ability to do the job, but provides you with sufficient information to determine whether a candidate is physically able to do what you are asking of them.

Some states and territories in Australia have made criminal records into a ground for discrimination, so employers should be careful when asking about a candidate’s criminal history. Again, it should only be asked where it has a direct impact upon the candidate’s ability to do the job rather than as a standard default in the application form.

Risks and Recommendations

When recruiting new employees, if you ask a candidate about a feature which forms a ground for discrimination under the Federal or State discrimination legislation, you risk a claim that you didn’t hire a candidate because of the existence, or lack of, that feature. Under the current laws, the burden would then be on you to prove that not only was it not the deciding factor in your decision, but it had absolutely no influence on that decision at all. This is not always an easy task, especially as not all employers document exactly why a candidate is unsuccessful.

We recommend that you re-evaluate your recruitment process, including your job application form and interview questions, to avoid discrimination claims. An equal opportunity policy would complement this process, providing guidance to your business and staff as to the expected fairness of the recruitment procedures.

For more information on recruitment of employees and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.