We’ve all had to deal with tricky questions in a job interview at some point. But do you know which questions an employer is allowed to ask, and whether the employee is obliged to answer them truthfully? Vojtěch Steininger from the law firm bpv Braun Partners explains the legal framework.
So, what is off-limits during a job interview?
As a general rule, questions about marital status (for example, “Are you married?”) or plans to start a family may not be asked. Nor may questions be asked about pregnancy, the number of children, their ages, illnesses or childcare. Questions such as “Are you a member of a trade union?” or about political beliefs are also prohibited. Naturally, you do not have to include this information in your CV, nor should it appear in pre-recruitment questionnaires.
Many may be surprised to learn that, in many cases, an employer should not even ask about your criminal record. However, there are exceptions here too: for example, when a bank hires staff who handle cash, it is surely undisputed that such a person should have a clean criminal record.
Generally speaking, an employer may not request information from an employee that is not directly related to the performance of their duties or the employment relationship. Under no circumstances should they ask about the employee’s sexual orientation, ethnic background, membership of trade unions, political parties or movements, or affiliation with a church or religious community.
There are, of course, certain exceptions. If, for example, a church is looking for a new clergyman, it stands to reason that, as an exception, religion may be one of the permissible selection criteria. Similarly, exceptions apply regarding a clean criminal record or pregnancy, including a planned one, in cases where this is required by specific legal provisions or arises from the nature of the work performed, such as in jobs that are prohibited for pregnant or breastfeeding women.
But what applies if the employer learns of one of the aforementioned taboo topics through other channels?
Even if the employer learns of facts in other ways that they are not permitted to obtain about the employee, they are not entitled to record this information in the personnel file. Furthermore, every employee has the right to inspect this file and to make copies of it at the employer’s expense.
What may and may not be included in an employee’s reference?
Before the employment relationship ends, the employer is obliged, at the employee’s request, to issue a reference containing an assessment of their work, qualifications, skills and other circumstances relating to the performance of their duties.
Any further information about an employee that is not permitted to form part of the reference may only be disclosed by the employer with the employee’s consent. If you represent your employer’s interests, you must not overlook this obligation – not even if another employer requests confidential information from you about a former employee.
Job advertisements should also comply with certain legal requirements. How should it be worded – and what should be avoided?
A job advertisement should appeal to potential applicants, but must not breach the law. For example, it is not permitted to use phrases such as ‘We are hiring a pretty, young, childless blonde. Prerequisite: ODS voter only’ or ‘The director is looking for a shapely assistant’.
The employer must not discriminate against either their employees or applicants. A job advertisement must not violate public decency, nor must it disadvantage or exclude applicants on the grounds of age, gender, race, religion, sexual orientation, ethnic origin or nationality.