Employment Rights Act will turbocharge creative interview techniques
Driven by the upcoming Employment Rights Act, which grants unfair dismissal rights to new starters after July 1, 2026, businesses are expected to increase the use of creative vetting methods – like Duolingo’s “taxi driver test” – but this exposes them to legal risks of inadvertently causing discrimination or generating a costly perception of unfairness among candidates, says Chris Deeley
Duolingo CEO Luis von Ahn recently hit the news following a comment on The Burnouts Podcast that the company had turned down an otherwise promising candidate for CFO because they had been “mean” to the taxi driver taking them from the airport to their interview. The rationale, von Ahn explained, was that “if they’re going to be mean to the driver, they’re probably going to be mean to other people, particularly people under them.” With the Employment Rights Act set to quickly grant unfair dismissal rights to new starters joining after 1 July 2026, it is likely that businesses will explore all options, even the very creative ones, to ensure their recruitment process is effective.
Using unorthodox criteria or hidden tests to separate otherwise neck-and-neck candidates is nothing new – the ‘receptionist test’ of secretly watching how an executive candidate treats more junior staff has been around for decades. It’s the same energy that fuels The Undercover Boss, and far too many posts on LinkedIn. But while it is no doubt attractive to believe that there is a secret ‘trick’ to weeding out troublesome candidates (or, on the flipside, to getting hired), might there be danger in relying too heavily on this sort of gimmick?
From a legal perspective, the risk – as is so often the case – is of inadvertently introducing discrimination into the hiring process. While businesses do largely have the leeway to select the candidates they want, giving everyone a fair shot is imperative and bringing in these more ‘maverick’ elements to an interview process could leave cracks for unlawful biases to seep in. Using von Ahn’s taxi test, an autistic candidate, for example, might prefer not to make small talk during their ride and instead use the time to decompress ahead of their interview. Might that be perceived as ‘ruder’ than a chatty neurotypical candidate? The issue is less about a particular protected characteristic, although one can see how disability, pregnancy and race/nationality (especially in the form of accents) could present obvious stumbling blocks depending on the ‘test’; instead the bigger risk arises from deploying unvetted criteria, which may also bear little relation to the day-to-day reality of the role being hired for (thus undermining any legal defence of pursuing a legitimate business aim).
Perception of unlawful treatment
As any employment lawyer can tell you, often avoiding litigation does not just require eliminating unlawful treatment, but also eradicating any space where a perception of unlawful treatment – even if misplaced – could take hold. That is another danger of the hidden interview test. If you know that you are a very well-qualified candidate for a role, and you are told that part of the reason that someone else was preferred to you was (to borrow another oft-referenced “test”) that you did not offer to wash up your coffee cup after the meeting, would you believe it? Perhaps not, particularly if you have already gone in feeling self-conscious about a visible disability, a strong accent or being female in a male-dominated industry. Sometimes that impression of unfairness is all that it takes to kick a dispute into gear, and it can be very difficult to dispel that sort of impression once it has taken root.
Even leaving aside any legal disputes, while a secret interview test makes for a pithy news article or a fun LinkedIn anecdote, one can question how it may be perceived by the workforce at large, both inside and outside a business. Generally, people (regardless of industry or status) will like to feel that opportunity and reward are driven by merit and hard work, something to which a secret trick runs counter. For a candidate on the receiving end, it could be all too easy to feel like all of your qualifications and experience have been cast aside in favour of little more than a coin flip. For any business tempted to use a secret test, therefore, protecting the narrative will be crucial – if you must turn the experience into a LinkedIn anecdote, at least make sure to emphasise that the test was the tiebreaker between two stellar candidates, not the only part of the process that mattered. Business therefore ought to be alert to the potential challenges associated with going the extra mile during the recruitment process, though some may be of the view that getting most of their hiring decisions correct in a brave new Employment Rights Act landscape is worth the risk.
Chris Deeley is an employment senior associate at law firm JMW in London