In job interviews, employers may only ask questions in which they have a legitimate, job-related interest. Under settled German case law, applicants may answer inadmissible questions untruthfully without consequence — the so-called “right to lie”. Rescission of the employment contract for fraudulent misrepresentation under § 123 (1) BGB (the German Civil Code) is only available where the deception concerned a lawfully asked question. For HR, this means: what matters is not the question you want to ask, but the question you are allowed to ask.
The Principle: A Right to Ask Only Where There Is a Legitimate Interest
The employer’s right to ask questions is not a general right to information. A question is admissible if the employer has a legitimate, reasonable and protectable interest in the answer specifically for the position to be filled — and that interest outweighs the applicant’s personality rights. The standard is therefore consistently job-related: what is admissible for one role may already be inadmissible for the next.
Admissible or Inadmissible: The Key Categories
- Career history, degrees, qualifications: admissible — there is regularly a directly job-related interest here.
- Criminal convictions: admissible only where the nature of the position establishes a relevant connection — for instance, property or financial offences for positions with cash or financial responsibility. A blanket question about “any criminal record” is inadmissible.
- Expunged or expungeable convictions: never admissible. Under § 53 BZRG (the German Federal Central Criminal Register Act), the applicant may describe themselves as having no criminal record in this respect; the Federal Labour Court has confirmed this (BAG 20.05.1999 – 2 AZR 320/98; BAG – 2 AZR 1071/12). Which entries do not appear in the certificate of conduct anyway is explained in police clearance certificate vs. background check.
- Characteristics under § 1 AGG (the German General Equal Treatment Act) — such as ethnic origin, religion, disability, age, sexual identity: questions on these are inadmissible as a rule; discrimination based on them is prohibited by § 7 AGG. Questions about pregnancy also fall into this category.
- Financial circumstances: admissible only exceptionally, where the position justifies it — for instance, a special position of trust in financial matters.
- Health and illness: admissible only insofar as suitability for the specific role is directly affected — blanket questions about the applicant’s state of health are inadmissible.
The practical rule of thumb: the further a question is removed from the specific requirements profile of the role, the more likely it is inadmissible — and the greater the risk that it later harms the employer rather than helps.
The ‘Right to Lie’ — and Why It Falls on the Employer
The consequence of an inadmissible question is borne by the employer: if the applicant answers untruthfully, the contract cannot be rescinded under § 123 (1) BGB, because the deception in that case is not unlawful. It is different with admissible questions: anyone who deceives on a legitimately asked, job-related question — for instance, about a fabricated degree — risks rescission and, where applicable, dismissal. How widespread such deception is, is shown in CV fraud in numbers. In addition: inadmissible questions on AGG characteristics can give rejected applicants claims to compensation — the interview itself becomes a liability risk.
The Better Strategy: Documented Checks Instead of Probing
“Creative” questioning in the interview is legally the weakest form of candidate vetting: the boundaries are fluid, the answers unverifiable, and nothing is documented. The legally safer path is the reverse — a structured review process with defined, admissible categories: verification of CV and degrees, register extracts within the statutory framework, sanctions lists and adverse media, each with a documented legal basis and a proportionality assessment per position. That is exactly what Indicium delivers: audit-proof reports with dated sources and final human review (Art. 22 GDPR), from €79 per report.
Recommended Action
Review your interview guides in three steps. First: delete every question without a clear connection to the role — in particular blanket criminal-record questions and anything touching § 1 AGG. Second: record in writing, per position, which questions are admissible on the basis of which interest; only then can a later rescission under § 123 (1) BGB be substantiated at all. Third: move the actual integrity check out of the interview and into a documented review using admissible sources. We are happy to show you what that looks like in practice in a demo; screening terminology is explained in the glossary.
This article provides general information and does not constitute legal advice.