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  • Judge says an employer can legally ‘discriminate’ on the basis of “colour”!

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Judge says an employer can legally ‘discriminate’ on the basis of “colour”!

Published: 12/09/2025
Written by Curwens Solicitors

A Croydon employment tribunal has highlighted the delicate balance between hiring for “team fit” and the risk of unlawful discrimination. Judge Daniel Wright, ruling on a case involving marketing agency Digitas LBI, suggested in principle that an employer could lawfully reject a Tottenham Hotspur supporter, even though they might be the most qualified for the job if the office was full of Arsenal fans!

The Judge was referring to case law where the courts and tribunals have addressed the rights of employers to use the metric of ‘fit ‘and/or ‘cultural matching’ when determining who to give a job to. The judgement pointed out that legally, there is nothing that explicitly prevents such an assessment. There may be times when it is perfectly lawful (and logical) for an employer to decide that somebody just will not be a suitable fit with the team that they are joining and that therefore it would be difficult to work together.

Judge Wright gave the example of a company where everybody who works in the office is an ardent Arsenal fan, and they decide against employing a qualified Tottenham Hotspur season ticket holder because they do not want to damage the harmony of the office.

supreme court update

This analogy was used when the judge dismissed an employment tribunal case that was centred on Russian national Maia Kalina, who alleged she was overlooked because she was less outgoing, disliked swearing, and avoided drinking at pubs - activities she claimed her interviewer considered “typically British.” Kalina argued that her anxiety and depression contributed to her reluctance to socialise, amounting to disability discrimination.

Ms Kalina asked the tribunal to consider whether her nationality and/or her disability contributed to her non-appointment to the role. The tribunal dismissed her claim, finding that Digitas LBI had chosen the candidate who seemed to fit better with the existing team.

The Tribunal came down on the side of ‘Team Fit’ over ‘Discrimination’. But what are the Legal Limits of Hiring for Cultural Alignment?

The Legal Framework

Under the Equality Act 2010, employers cannot discriminate based on protected characteristics such as disability, race, religion, sex, or age. Supporting a football team – being a Blue, or a Red, a Black & White, a Claret or a Gold – is not covered, so a decision favouring an Arsenal fan over a Tottenham supporter would not, in of itself, be unlawful. However, rejecting someone because their mental health or cultural background limits social participation could cross into discrimination, particularly if reasonable adjustments are not considered.

Risks of Overemphasising “Fit”

Employers are entitled to consider whether candidates will gel with colleagues, but overemphasis on social compatibility risks creating monocultures that exclude those from different backgrounds. Tribunals look for objective, job-related criteria in hiring decisions; subjective judgments about lifestyle or personality can be problematic if they disadvantage people with protected characteristics.

Practical Recruitment Objectives for Employers

  1. Record objective reasons: Keep a clear audit trail of why one candidate was chosen over another, focusing on skills, experience, and demonstrable ability to meet business needs.
  2. Balance cultural fit with competence: While team harmony matters, it would be difficult to argue that it should outweigh professional competence. Employers should avoid assumptions that social habits, like drinking, equate to better performance.
  3. Make reasonable adjustments: If a candidate discloses a disability that affects social interaction, employers must consider how the role can be adapted. This not only reduces legal risk but also strengthens inclusivity.
  4. Broaden definitions of “fit”: Employers should value diversity of thought, background, and personality as much as shared interests. A strong team can include both pub-goers and non-drinkers.
  5. Train hiring managers: Regular training ensures those making recruitment decisions understand the limits of lawful discretion and the risks of unconscious bias.
  6. Build inclusive workplace culture: Social activities should be varied so that employees who do not drink or share certain hobbies are not excluded from networking opportunities.

 No Escape From Liability

Judge Wright’s football analogy may have been tongue-in-cheek and inflame the friction between the Lillywhites and Reds in North London, but the ruling underscores a serious point, namely that employers do have leeway to assess team dynamics when making recruitment decisions, yet that discretion must always stop short of illegal discrimination.

Omar Qassim is the Head of Employment Law at Curwens Solicitors. He specialises in advising both employers and individuals on all aspects of employment law. A large proportion of his work involves dealing with employment tribunal litigation – working on behalf of both employers and employees - drafting claims and/or grounds of resistance and witness statements, and advising on procedural issues such as disciplinary and grievance matters, sensitive internal investigations, recruitment or exit strategies, advising new and existing businesses on developing staff handbooks and including social media policies and hybrid working policies.

Please note that our briefings are for informational purposes only, and do not constitute legal advice.

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Find out more Your data will not be disclosed to any third parties without your consent or as otherwise allowed by the relevant Data Protection legislation and will only be used for responding to your query (or purposes associated with that purpose).

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