In a recent case that has hit the headlines, Kalina v Digitas LBI Ltd, an employment judge has stated that rejecting a job applicant because they support a rival football team, to the existing staff, can in some circumstances, be a valid consideration, particularly if hiring them might genuinely disrupt office harmony.

When taking such a consideration into account, this should be done on the basis of whether employment of the job applicant could “damage office harmony”, for example, keeping with the Judge’s football analogy, where disagreements about teams can cross the line from ‘banter’ to aggression and rudeness.

In this case (brought by a job applicant, who was rejected because she allegedly didn’t “vibe” with the interviewer), the judge gave the clear example of an employer being able to reject a job applicant that was a keen Tottenham Hotspur supporter, where the office was made up of Arsenal fans, noting that employers had the right to take into account whether a prospective employee would get on well with existing staff, and stating:

“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.”

Therefore, when coming to a decision in relation to job applicants, making a decision based on who is a better fit for the existing team, and working environment, whether based on their support for a particular football team, or otherwise, was a valid and acceptable consideration.

Hiring managers often talk about recruiting someone who is the “right fit” for the team.    While cultural compatibility can matter, it becomes problematic when “fit” becomes a proxy for similarity, or a reason to exclude people who are different.

Imagine an employer routinely hiring only those who “socialise well with the team” or who share similar hobbies or interests.   If this practice ends up filtering out candidates from different backgrounds, cultures, or belief systems, it could be challenged as discriminatory, even if unintentionally so.

Employers need to be careful in recruiting that they focus on skills, competencies, and values relevant to the job, before personality quirks or hobbies.

This issue invites comparison with the case of McClung v Doosan Babcock, where the tribunal held that support for a football team does not amount to a philosophical belief under the Equality Act 2010.  While Kalina suggests that team allegiance might (in rare cases) be a factor in assessing office harmony, McClung makes it clear that football fandom is not a protected characteristic.   

Mr McClung was a Rangers fan and unsuccessful in his claim for discrimination, after he claimed that he was not offered any further work by a manager that supported rival team, Celtic.

In this claim, Mr McClung argued that he was living his life “in accordance with being a Rangers fan” and claimed that his support for Rangers was a philosophical belief stating, “I don’t go to church.  I go to Rangers. It’s a belief to me.”

In order to be a philosophical belief and be classified as a protected characteristic, Mr McClung had to prove that the belief passed the test set out in the case of Grainger plc and others v Nicholson, by demonstrating that:

1. his belief was genuinely held; 
2. it was a belief and not an opinion or viewpoint based on the present state of information available; 
3. it was a belief as to a weighty and substantial aspect of human life and behaviour; 
4. the belief attains a certain level of cogency, seriousness, cohesion and importance; and 
5. the belief is worthy of respect in a democratic society (and not incompatible with human dignity and not conflict with fundamental rights of others).

The Tribunal held that Mr McClung’s support for Rangers did not meet the test, specifically those set out in two, three, four and five (above), with the judge stating, “Support for Rangers has no larger consequences for humanity as a whole, nothing underpinning it beyond a desire for the team to do well/win and no impact on how people lived their lives,” and suggesting his support for Rangers was a lifestyle choice rather than a philosophical belief.

So, whilst there have been decisions holding that beliefs such as spiritualism and ethical veganism are a philosophical belief, being a fan of a particular football team is not.  However, employers should still be cautious, decisions based on such non-protected traits can still raise concerns if they disproportionately impact certain groups or are used to disguise deeper biases.

For Employment Law advice, please contact our Employment Team.