There are certain things that a potential employer is allowed to ask you, and certain things they can’t. In Australia, both state and federal laws exist to protect an employee from oversharing information that may cause their employer to discriminate against them. In this article, we answer some of the frequently asked questions about what an employer can legally ask.
Can they ask me for my age?
No.
The only times where an employer may ask for your age in the hiring process, is if the job involves a restricted product. For example, if the job involves service of alcohol, or gambling. The best way for an employer to ask this, to avoid being accused of age discrimination, is if the person holds an RSA or RCG.
Once you have the role, the employer is able to ask your age. This is due to taxation, remuneration and superannuation reasons.
Can they ask me my marital status?
No.
Any relationship status, or gender sexual preference is irrelevant to a job. Accordingly, an employer is not able to request this information.
Can they ask if I have children? Or if I’m planning to have children?
No.
Employers, regardless of current or prospective, are unable to ask about your plans with children. If this is asked, and you’re treated less favourably than someone with no plan of having kids, that can be considered discrimination due to family responsibilities.
Can they ask if I’m religious?
No.
Religious beliefs are irrelevant being able to fulfil a job. Unless the role literally involves a religious position, requesting this information can amount to discrimination on the grounds of religious belief.
Can they ask if I have the right to work in Australia?
Yes.
Employers are allowed to, and are required to ask this. If the employer hires you when you don’t have the right to work in Australia, it will cause legal problems for both parties.
Can they ask if I have a medical condition?
No.
Unnecessary questions about your medical condition can amount to disability discrimination. However, employer’s can request for you to take a health assessment, due to the requirements of the role. For example, this is a requirement of the Defence Force, and Police Force.
Can they ask if I have a criminal record?
It depends.
Employers should only check about a criminal record when there is a relationship between the requirements of the role, and a criminal record. However, employer’s have the right to request employee’s consent to a police check.
Can they ask why I left my last job?
Yes.
An employer has the right to discuss with you your previous employment. This includes what the job entailed, your thoughts on the role and why you left.
Can they ask if I use drugs or alcohol?
It depends.
Generally, no. However, if the role involves operation of heavy machinery, or will be directly affected by the use of drugs or alcohol, then the employer may. Further, the employer has the right to include mandatory drug testing as part of their drug and alcohol workplace policies.
What can I do if I’ve been asked a question they’re not allowed to ask?
If a prospective employer asks you one of the questions they’re not allowed to, it can put you in an awkward situation. It is our recommendation to politely acknowledge that the employer is not legally allowed to request that information, and proceed to the next questions.
However, you may also want to consider if you want to work for the company after all.
Final thoughts
Navigating the employment process can be difficult. However, knowing your rights, and what employer’s can legally ask you is an important factor to securing your job. If you believe that you’ve been discriminated against due to answering one of the above questions, get in touch with a discrimination lawyer.
