Hiring for team spirit: Tiebreaker or own goal?

This is a guest blog from REC business partner JMW.

Hiring a candidate based on which football team they support? According to a widely reported comment by Judge Wright in a recent Employment Tribunal judgment, that may just be a lawful decision – in the right context. But headlines aside, the judgment provides an important commentary about how employers should approach cultural fit during the recruitment process.

The comment in question was made in Judge Wright’s judgment in Kalina v Digitas. In this case, Miss Kalina applied for a job with the respondent but, while she made it through to the final two candidates, she was ultimately rejected for the role in favour of the other candidate. Miss Kalina brought a claim against the employer on several grounds, including that of racial discrimination on the basis that she didn’t fit an “unspoken template of Britishness”.

In rejecting this ground of her claim, Judge Wright stated that it can potentially be a lawful decision to select one candidate over another due to them being a better fit with the existing team. To illustrate the point, the judge gave the colourful example of a small company of Arsenal supporters where it may be reasonable “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”.

Tottenham fans will be pleased to know that this comment isn’t binding, meaning that tribunals aren’t required to follow it. Although the principal is one that may be persuasive in future cases.

However, employers tempted to favour Arsenal supporters should take note that the judge urged a degree of caution when factoring “cultural fit” into the hiring process. While fit with the existing team may be considered, doing so beyond the bounds of a tiebreaker between similarly qualified candidates can expose the employer to potential claims.

Employers should tread carefully where “cultural fit” may overlap with a protected characteristic. For example, if a Wrexham-based office of England rugby fans chose an England supporter at interview over a Welsh supporter to preserve “office harmony”, they may be opening themselves up to a claim for discrimination on the basis of nationality. While this may seem obvious, it underlines that the principle of “cultural fit” must be used carefully and not become a proxy for exclusion – even unconsciously.

In the case of Kalina, the respondent had the benefit of documentation during the hiring process to support their case that the crucial factor in the final selection came down to vibes, referencing emails stating that the successful candidate “is a better fit” and “we vibe well”.

While the recent headlines have leaned heavily on the light-hearted football commentary, there is a serious takeaway for employers. “Cultural fit” may be a suitable tiebreaker in some circumstances – but only when applied carefully, and as part of a fair, inclusive, and legally defensible hiring process.

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