The case of Kalina (the Claimant) v Digitas LBI Ltd (the Respondent) was recently heard at London South Employment Tribunal. Among other grounds, the Claimant alleged that she had been the subject of race discrimination in the recruitment process.
In finding that there had been no such discrimination, the Tribunal provides useful guidance for employers on what can lawfully be taken into account when making recruitment decisions.
Background
The Claimant had applied for a role at the Respondent. She attended two interviews and was one of the final two candidates but was ultimately unsuccessful.
The Claimant asserted that, in deciding not to appoint her to the role, the Respondent had discriminated against her. She strongly considered herself to be the better candidate and alleged that the Respondent had chosen not to appoint her because she did not swear or enjoy going to the pub, in contrast to the rest of the team whom she would work with. She argued that these activities reflected the "British stereotype" and that, as a Russian national and therefore due to her cultural background, she was more reserved and did not indulge in such activities. In the Claimant's view, the Respondent's decision amounted to race discrimination.
The Respondent had used competency-based interviews to assess the candidates' technical ability. However, the individual who had carried out the interviews, providing witness evidence at the Final Hearing on behalf of the Respondent, also accepted that while both candidates were suitably appointable to the role, she "vibed" more with the other candidate, and that the decision on who to appoint ultimately came down to who was the better fit within the team.
The decision
Judge Wright could not make a finding of race discrimination because the Claimant had failed to provide evidence of any such "British stereotype".
Judge Wright went on to say that, even if the Claimant had adequately demonstrated this stereotype to exist, the Respondent's decision would not have amounted to race discrimination. Where candidates are evenly matched, and the employer needs to find some way of distinguishing between them, it is acceptable for an employer to consider how a prospective candidate may fit within the wider team from a social perspective. Judge Wright highlighted that employers must exercise caution when doing so to ensure decisions are legitimate and non-discriminatory.
Judge Wright gave the example of an employer who chooses a candidate who supports the same football team as those within the company, over a candidate who supports a rival team. Where the two candidates are similarly qualified, Judge Wright explains that such decision making would be perfectly lawful.
The takeaway
Whether a prospective employee is a good fit for an existing team can be a reasonable consideration for employers trying to decide between similar candidates. However, Judge Wright's assertion that the football team a prospective employee supports could influence decision-making appears an extreme example, and employers should continue to exercise caution throughout the recruitment process to ensure decisions are lawful. This is particularly the case where an employer uses the social behaviours of candidates to inform decision making, and these behaviours can be linked to a protected characteristic. Clear and regular training on unconscious bias for those making recruitment decisions is imperative.
Employers should ensure the focus remains on legitimate business need, considering which candidate would, for example, best contribute to an efficient, amicable and stable workforce. In determining this, employers make take into account all relevant characteristics. They should ensure they keep detailed notes of all recruitment decisions that they can refer back to in the event that decisions need to be justified.
If you would like advice on your recruitment practices or policies, please contact a member of the Employment team at Michelmores LLP.
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