The case of Kalina v Digitas LBI Limited arose from an unsuccessful application made by the claimant to work with a client of the respondent. The respondent made a decision to appoint another candidate on the basis that she was "a better fit". Amongst other claims brought by the claimant (all of which were either withdrawn or dismissed), the claimant alleged that she was not the right fit because of cultural differences between her and the British employees she would be working with. She alleged that this amounted to direct race discrimination.
It is not, however, the factual detail of the case or the reasoning for the decision that is the point of interest arising from it. Rather, it is the example given by the Judge of when it might be lawful for an employer to decide that somebody will just not fit in with a team.
The example given was "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 judgment then sets out that the decision would be lawful, albeit noting that taking the example to the extreme would not necessarily be good for business. It is this example that has been picked up on by the press. But is there a risk that rejecting a candidate based on which football team they support might be unlawful?
Context is all-important
Being a fan of a particular football team is not a protected characteristic. That point has already been litigated in the case of McClung v Doosan Babcock Ltd & Others. Mr McClung had argued that his support of Rangers football team was a philosophical belief protected by the Equality Act 2010. The employment tribunal dismissed his claim.
The risk here, though, is one that will not come as a surprise to most people who understand Scottish football. If the example given by the Judge in the Kalina case had referred to Rangers and Celtic, the decision to choose based on which football team was supported would likely be more problematic. The reason for that is the widely known religious connotations. Discrimination on the grounds of religion and belief is unlawful.
Let's take a hypothetical job applicant. The applicant is Protestant and a Rangers fan. The role is in an office where all current employees happen to be Celtic fans. The employer decides placing a Rangers fan in amongst an office full of Celtic fans will disrupt the harmony of the working environment. An equally qualified applicant who is a Celtic fan is given the job.
The Rangers supporter complains to a tribunal that they have been indirectly discriminated against on the grounds of their religion. It is argued that supporting Celtic is closely associated with being Catholic. It is further argued that applying a provision, criterion, or practice ("PCP") that you must be a Celtic fan to get the job disproportionately excludes Protestants. Evidence would be required to support this – something along the lines of demographic data or expert evidence about the social and cultural link between religion and football allegiance in Scotland. The Rangers supporter then argues that they have been personally disadvantaged as they are also excluded by the requirement to be a Celtic supporter, that requirement being tied into religion.
If the tribunal accepts the Rangers supporter's position on this, the employer would then need to show that the application of the PCP was a proportionate means of achieving a legitimate aim. The employer would need to persuade the tribunal that they had a legitimate aim – for example, ensuring team harmony – and that the requirement for staff to be a Celtic fan was a proportionate way of achieving that legitimate aim. It would likely be an uphill struggle to persuade a tribunal that mature adults who could receive and understand training around equality issues could not be trusted to set aside football allegiances and act in an appropriate manner in a working environment.
