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Interviewer who appointed employee to role because she ‘vibed’ with her did not discriminate against the unsuccessful applicant
Adrian Fryer
In the recent employment tribunal case of Kalina v Digitas LBI Ltd, two applicants were interviewed for a role. Both were found, following a competency-based assessment, to be appointable. The successful candidate was chosen, in large part, because she was considered to be the ‘best fit’ for the team. The interviewer noted that she had ‘vibed’ with her at interview. The unsuccessful candidate alleged that this way of choosing which person to appoint was discriminatory on grounds of race and disability. Allegations included:
- That she was not appointed because, as a Russian, her personality did not confirm with British workplace norms, which she saw as swearing, being outgoing and going to the pub.
- That she was not appointed because of her disability of anxiety and depression (or for a reason related to it: her difficulties with social interaction).
The tribunal dismissed all of her claims. Importantly, the tribunal recognised that ‘team fit’ was often a key factor in recruitment processes. Whilst acknowledging that caution should be exercised when taking account of such factors (because of the discrimination risk), it did not follow that selecting from two good candidates based on who was the better ‘team fit’ would be discriminatory. There has to be a role for personality in recruitment. It cannot be stripped away entirely for fear of discrimination. However, caution should be exercised:
- Have a clear recruitment policy. If ‘team fit’ forms part of it, make sure that it only becomes relevant some way down the recruitment exercise.
- Be aware of the risk of unconscious bias in recruitment situations. Generally, the more people involved in the decision to appoint, the less likely it is that unconscious bias can take hold. Consider using a panel or joint decision makers.
- Be particularly careful to make sure that ‘team fit’ does not stray into unlawful discrimination. Key risk areas could be where a candidate holds a particular religion or belief; where the candidate has childcare responsibilities which may limit out-of-hours socialising (possibly indirect sex discrimination against women), or where the candidate has a health condition (for example, autism) which impacts on social interactions (potentially discrimination arising from a disability).