What UK SMEs Can and Can't Ask at Interview in 2026

Discrimination claims at interview sometimes begin with a hiring manager trying to be friendly. A guess about when someone graduated, a comment about the school run, a weekend pleasantry that sounds like rapport. None of it intended to cause harm, but all of it capable of ending in tribunal. 

Research cited by JobsinWales found that 73% of 2,000 UK professionals had been asked an inappropriate or unlawful question at interview. The pattern is consistent. The questions come from people who believe they're building rapport, and the candidates on the other side of the desk file those questions away. That gap between intent and impact is where the legal risk sits, and for SMEs without an in-house HR function, it sits very close to home. 

Why interview law has just become harder to ignore 

The Equality Act 2010 still does the heavy lifting. It protects candidates from discrimination on the basis of nine characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. 

Two features of the Act make it especially relevant at the interview stage. 

Protection from discrimination is a day-one right. There is no qualifying period of service. A candidate who never sets foot inside your office can still bring a tribunal claim if they believe an interview question crossed a line. 

Compensation is also uncapped. Most unfair dismissal awards are limited to £123,543 or 52 weeks' gross pay, whichever is lower. Discrimination is in a different category entirely. The maximum sex discrimination award in the 2023/24 reporting period reached £995,128. The maximum disability discrimination award reached £964,465. Real awards, against real UK employers, in the last full reporting year. 

All of that has been true for over fifteen years. What's shifted is the broader environment. The Employment Rights Act 2025 is rolling out across 2026 and 2027, bringing stronger worker protections and lower barriers to bringing claims, and candidates are more aware of their rights than they have ever been. Interviews carry the same legal weight they always have, and the appetite to challenge a poorly run one is higher than it has ever been. 

The Section 60 rule almost every SME breaks 

Health questions deserve their own section because the law here is unusually specific and almost universally misunderstood. 

Section 60 of the Equality Act 2010 restricts employers from asking about an applicant's health or disability before making a job offer. There are narrow statutory exceptions, but the default position is that pre-offer health questions are unlawful. 

Off the table before offer: 

• Do you have any health conditions we should know about? 
• How many sick days did you take in your last role? 
• Is there anything that might stop you doing this job? 
• Have you ever made a workers' compensation claim? 



What you are allowed to ask: 

• Whether the candidate needs reasonable adjustments to take part in the interview itself 
• Whether the candidate can perform the intrinsic functions of the role, meaning the genuinely fundamental tasks rather than peripheral duties added by historic practice 
• Health questions where there is a recognised occupational requirement 

Once you have made a conditional offer, the door opens. You can use a pre-employment health questionnaire and ask the questions you need to ask. Before that point, keep it shut. 

The other questions that get SMEs into trouble 

Interviewers know not to ask "are you planning to have children?". The traps are subtler than that. 

Anything that lets you calculate someone's age. When did you finish school? When did you graduate? When are you thinking about retiring? Each of these supports an age discrimination claim if the candidate is rejected. A question about relevant experience does the same job without the risk. 

Anything that touches family planning, marital status or caring responsibilities. Are you married? Do you have children? How will you manage childcare? Pregnancy and maternity claims are some of the most heavily litigated in the UK, and they regularly include awards for injury to feelings on top of financial loss. If the role genuinely requires evening availability or specific working patterns, ask about the requirement, not the personal circumstances behind it. 

Anything that probes race, nationality or background through the back door. Where are you really from? What's the origin of your name? Were you born in the UK? The legitimate version of this conversation is one question: do you have the right to work in the UK? Ask it of every candidate, document the answer, and stop there. 

Anything about religion or belief. What religion do you practise? Will you need time off for religious holidays? Where a role has scheduling demands, frame the question around those demands. Reasonable adjustments for religious observance can be discussed if and when the successful candidate raises them. 

Anything about sex, sexual orientation or gender history. Are you in a relationship? Have you transitioned? What was your name before? These questions have no place in a UK job interview, and there is no version of them that helps you assess whether someone can do the job. 

The questions that sound innocent (and aren't) 

This is where quite a number of SMEs get it wrong, because the questions seem harmless, more rapport than risk. 

What school did you go to? Often used, consciously or not, to infer race, religion or socio-economic background. A question about education and qualifications generally is fine. A question about a specific school or area is not. 

Are you a member of any trade union? Discriminating on the basis of trade union membership breaches the Trade Union and Labour Relations (Consolidation) Act 1992. Around 22.4% of UK employees were trade union members in 2023, so this affiliation is more common than many SMEs assume. 

Have you ever been arrested? Arrests are not convictions. Under the Rehabilitation of Offenders Act 1974, you can only consider unspent convictions, and only where they are relevant to the role. 

How long until your kids start school? In one sentence, you have touched age, sex, family status and pregnancy implications. One of the most damaging questions an interviewer can ask. 

What do you and your partner usually get up to at the weekend? Casual on the surface. Below it, the door is open to inferences about marital status, sexual orientation and religion. 

What you can and should ask 

A legally sound interview is not a stilted one. There is wide scope to explore everything that actually predicts whether someone will do the job well: 

• Skills, knowledge and experience tied to the job description 
• Worked examples of how the candidate has handled situations they will face in the role 
• Their understanding of your business and your sector 
• Their motivation for applying and what they want from their next role 
• Their availability and notice period 
• Their right to work in the UK 
• Their ability to perform the intrinsic functions of the role, with or without reasonable adjustments 
• Salary expectations and references 

The test is simple. If a question is not tied to the requirements of the job, ask why you are asking it. If the answer isn't clear, take it out. 

What it actually costs when an interview goes wrong 

Discrimination compensation is calculated across several components: past financial loss, future financial loss, injury to feelings, aggravated damages where employer conduct has been particularly poor, and interest. A 25% ACAS uplift can be added on top where the employer has failed to follow proper procedure. 

Injury to feelings is assessed using the Vento bands. For claims presented from 6 April 2025, the lower band runs from £1,200 to £12,100, the middle from £12,100 to £36,400, and the upper from £36,400 to £60,700. The most exceptional cases exceed £60,700. 

Stack those components together and the headline awards begin to make sense. The median award is lower than the maximum, but the ceiling is what matters when an SME owner is trying to gauge the worst-case exposure of a single bad interview. For most businesses operating in Staffordshire and Cheshire, the worst case absorbs a year of profit before legal fees, management time and reputational cost are even counted. 

Three changes that protect you 

For SMEs trying to tighten their interview process without bringing in a full HR function, three changes do most of the work. 

A structured interview format keeps every candidate on the same questions, scored against the same criteria, with documented reasoning. Free-flowing interviews are where discriminatory questions creep in and where hiring decisions become difficult to defend later. 

Equality and diversity training for everyone who sits across from a candidate, founders and technical interviewers included, doesn't need to be elaborate. It does need to happen, and the record of it matters if a claim is ever brought. 

Objective interview notes are evidence in your favour if a claim is raised. Notes about a candidate's competence, examples and answers help your case. Notes about accent, perceived age, "fit" or family situation actively damage it. 

This is also where a recruitment partner pays for itself. A well-run agency screens candidates against a clear brief, briefs hiring managers on what to ask and what to leave alone, and flags early when an interview process is drifting into territory it shouldn't be in. 

Get the detail before your next interview 

Interview law has more in it than any single blog can cover, and the consequences of getting it wrong are sharper now than they have been at any point in the last decade. 

We're running a free 30-minute webinar on 30 April 2026 at 12pm GMT covering exactly this. It walks through the questions that create legal exposure, the framework for running interviews that hold up to scrutiny, scoring candidates objectively, the role unconscious bias plays, and what to do when a candidate discloses something sensitive on the spot. 

If you or anyone on your team interviews candidates, it's worth blocking out the half hour. 

Reserve your place at the webinar