Background
Ms Kalina, who identified as being of Russian nationality and as suffering from depression and anxiety, applied for two separate jobs with Digitas LDI Limited. Although she had reached the final selection panel in respect of both applications, she was ultimately unsuccessful.
In respect of the first application Ms Kalina alleged that this was due direct race discrimination based on her Russian, more restrained, personality which did not fit well with the stereo type she presented of British employees as being outgoing, enjoying going to the pub and swearing. It was because of this she alleged that the employer had chosen the other, more emotive, candidate.
Ms Kalina alleged that she had been unsuccessful in respect of her second application due to direct disability discrimination and discrimination arising from her disability, based on her depression and anxiety, which the employer sought to defend on the basis that a high level of resilience was needed to cope with a client known to be unusually difficult.
Tribunal Decision
The tribunal dismissed all Ms Kalina’s claims.
In reaching its decision it reiterated that an employer has a wide discretion on how they conduct interviews and what factors they place the greatest weight on. In this case the interviewing panel for the first application had decided that they had “vibed” more with the other candidate who they felt was a “better fit.” Ms Kalina’s stereotype of a British employee was rejected as she had bought no evidence that such a stereotype existed.
The tribunal gave the useful analogy of manager hiring for an employee to join a team of arsenal supporters. If faced with two equally good candidates, as the panel was in this case, an employer was free to choose an arsenal supported over a supporter of a rival club in order to preserve the harmony of the team. This was perfectly legitimate.
Turning to Ms Kalina’s second allegation of disability relating to her second application the tribunal also reiterated the wide scope of discretion in determining what factors are important, ensuring that, in this case they appoint someone with resilience, given the particularly difficult client Ms Kalina would have been working with. Given that Ms Kalina would be working in a highly stressful role, which she had not adequately demonstrated interview that she would be able to cope with, the Tribunal decided that it was proportionate for the employer to consider her unsuitable for the role.
Recommendation
Whilst the case is a helpful reminder of an employer’s wide discretion to appoint a candidate based on who would fit best in the team the tribunal did note that this must be done with caution.
In this case the employer was able to show that Ms Kalina’s nationality was not a factor in its decision not to appoint her to the first role because it could demonstrate that its decision was purely based on who would be the best fit. In the second application the tribunal decided that whilst the decision did arise from Ms Kalina’s disability it was a proportionate decision not to employ her in the second because of the unusually stressful nature of the role.
The case serves as a reminder that employers must scrutinise their decisions to ensure that they demonstrate that their decision making does not involve discrimination on any grounds or they may find they have overstepped their wide discretion on who they can recruit.
Leave a comment