A Tottenham Hotspur supporter can legally be turned down for a job if all other staff are ardent Arsenal fans and the hiring manager fears workplace harmony may be at risk, a judge has ruled.
The finding came in a recent employment tribunal decision rejecting a claim of cultural discrimination, with the judge using the football rivalry as an illustrative example of how employers can use team fit to make lawful hiring decisions, even if the reasoning appears subjective.
Employment Judge Daniel Wright ruled in the case of Maia Kalina, a Russian national who brought a discrimination claim against marketing and technology agency Digitas LBI after she was rejected in a final interview round.
Kalina, who has severe anxiety and depression, claimed she was passed over because she was not “outgoing” or interested in going to the pub or swearing, and therefore did not fit into what she described as a stereotypically British team culture.
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But the judge dismissed her claim and said there was nothing unlawful about selecting the other candidate on the basis that they were a better cultural fit.
“There may be times when it is perfectly lawful for an employer to decide that somebody just will not be a fit with the team and that therefore it would be difficult to work together,” he wrote in the judgment.
“An example of this could be a small company where everybody who works in the office is an ardent supporter of Arsenal Football Club, and they decide to pick an Arsenal fan at interview over a similarly qualified Tottenham Hotspur season ticket holder because they do not want to damage the harmony of the office. The decision there would be lawful (albeit taking the example to the extreme would not necessarily be good for business).”
‘Cultural fit’ not in itself discriminatory
The tribunal heard that Kalina was invited to apply for a new role and was one of two final candidates. The hiring manager, Stephanie Hill, told the tribunal she “vibed more” with the other interviewee and said both candidates had similar qualifications and experience.
She said Hill did not hire her because she didn’t swear or drink with colleagues, both of which were deemed to be British values.
Kalina argued that not wanting to socialise or go to the pub was tied to her mental health and cultural background and that rejecting her on this basis was discriminatory.
But Judge Wright said the evidence did not show the decision was based on any protected characteristic such as nationality, disability or religion.
“I find that there is no stereotype of British workers being as the claimant describes. I accept that a number of British people could be described as going to the pub, swearing liberally and being outgoing. But there are just as many British people who frown upon anything which could be considered a curse word, who eschew the pub culture and who are far from outgoing and instead have the British ‘“’stiff upper lip’,” he said.
“As such, in the absence of evidence, I am not satisfied that this stereotype of British people exists because, at best, it would apply to a sub-group of British people. The claimant described it as an ‘unspoken template of Britishness’ but I reject that.”
He found that Digitas had acted lawfully and that the preference for another candidate was based on perceived team compatibility rather than bias.
Previous football-related case cited
Commenting on the ruling, Nicole Whittaker, associate director of human resources at HR services firm Peninsula, said it was not the first time football allegiance had come up in tribunal proceedings.
She cited the 2019 case of Edward McClung, a Glasgow Rangers fan who claimed he was denied work by a Celtic-supporting employer and brought a case of discrimination based on philosophical belief. The judge in that case ruled that while football support could be respected in society, it did not amount to a protected characteristic under the Equality Act 2010.
Whittaker said that while qualifications and experience are the main factors in recruitment, hiring decisions often come down to who is the best cultural fit when candidates are otherwise equally matched.
“The default advice on making recruitment decisions is to use objective criteria that can be easily substantiated,” she said in a statement. “But this decision shows us that assessing ‘vibe’ or culture can be an acceptable decision-making route, but the devil is in the detail.”
“Had [Kalina] been able to convince the employer that the ‘vibe’ was connected to a protected characteristic, the outcome could have been very different.”
