Can employers use 'lack of culture fit' as a valid reason for not employing someone?Posted in : Seamus Says - Employment Law Discussion on 1 March 2019 Issues covered:
Can employers use 'lack of culture fit' with the organisation as a valid reason for not employing someone, even if they meet all the other criteria for the role? How do employers avoid a discrimination claim in this sense?"
Scott: This question relates to recruitment and selection, it's a very clever question.
Seamus: This is a good question. It's an interesting one as well. I have to say, immediately, my red flag is up in terms of danger on this one with the aspect of looking at a culture fit. I think I probably need to know specific circumstances around what is the culture fit.
Scott: Let's take something like, I don't know, the tech companies, so Apple and Google and so on, or some of those call centres where they tend to have young people. They have this youthful, vibrant thing. So, maybe start-up companies, they tend to be younger people and they're saying, "We want somebody that fits this get up and go, vibrant, enthusiastic type of culture".
Seamus: The short reply to that is then you're looking at your age discrimination regulations, the 2006 regulations, as a potential of a claim.
Scott: It leaves you open.
Seamus: I think it does, yes. Ultimately, there are a couple of questions around this. I think the company needs to be very careful in terms of making assumptions as well in terms of cultural fit. It could be that you have somebody older but they don't lack any kind of enthusiasm. They could be a real get-up-and-go-type person. I think if you end up in a tribunal, you're going to have difficulties in terms of objectively justifying what your position might be.
I would say as an employer, if you did have concerns like that, I would be writing them down and going through them in my head as to what are the real reasons here as to why this person might not fit in.
Then I think you'd have to look at the potential discriminative points. Are there protected characteristics involved here? Then looking at whether you can objectively justify any type of discrimination. It really is problematic.
Scott: You could maybe get around it if you can justify some of the questions. Let's move away from that and say the culture fit is we do lots of long hours here. We just love our job. We never want to leave it, and so on. You could ask questions about flexibility. You could ask questions about being willing to travel. So long as they're a part of the job, you may be able to justify those if that counts as culture.
Scott: I don't know if it does, but if it counts as culture . . . and it may well do. Long hours culture, people use it. Whether that, again, would be discriminatory on grounds of indirect sex discrimination because fewer females could comply or so on, it does make things difficult.
Seamus: It does. For instance, if you approach an employer and you know that the background to the employer is they're involved in lots of sports, they have a great football team, they're competitive . . . You know, that kind of like school basis, where some schools are well-known. Some employers are known for their . . .
Scott: Golf team.
Seamus: All those sorts of things. If the person arrives for the interview, the bottom line is if you have someone that is ticking all the boxes and is coming out on the recruitment process as the number one candidate for the role, it's very difficult then to say, "We don't have a cultural fit here". That's the purpose of you using your criteria and everything else.
In saying that, there are just so many minefields that I can think about. Even looking at the aspects of the discrimination, it took my mind straight back to the Randox Laboratories case, which was in the tribunal a number of years ago, where an employee who was overweight and obese brought a discrimination claim. And the tribunal didn't . . . It's that aspect of saying, "I can't take a claim for discrimination because I've got ginger hair", or, "I'm fat and I'm obese". But the tribunal didn't. They drew a link into it and said it was disability discrimination instead.
Even whenever you're making your list and saying, "I'm going to try and risk assess my position here in terms of the cultural fit", I think you have to think outside of the box as well. Not just on the [inaudible 00:41:03] claim that we know about and the protected characteristics, but you're thinking outside the box there as well.
Scott: You don't have to use criterion-based interviews. Even the Equality Commission themselves are moving away from that angle because they're so easy to pass. You could ask questions, speculative ones, such as, "What would you do in a situation like this? How would you handle this particular situation?" You could give tests which would be more reflective of what you do.
I think one of the problems was saying they don't fit the culture, as if people are being a little bit less creative when it comes to asking questions.
If you wanted to give people problems or give them problem-solving things, then you may well find if you're looking for people who have really got that enthusiasm for dealing with issues, if that's what your job entails, then ask more questions about the job and the real aspects about what you'd like about it. You can call it culture. You can call it anything you like.
Seamus: One example that springs to mind is that, I'm just thinking back to a situation that a client of mine recently had, he had someone that worked in an area of debt collection. What they needed in terms of that person was they needed an aggressive personality, somebody that was going to be ringing up the debtors that owed money to the business and saying, "You haven't paid your bill yet. When can I expect it?" And they were going to be phoning back a few days later if the money hadn't been paid.
What they were looking for was a certain type of individual that they could get from an interview that was going to be aggressive and asking questions, "How would you handle it? If the person told you they were going to pay it by the Friday and they hadn't paid it, what would be your next step?" They're looking for that. We see them in sort of for fee earners and businesses as well. You want someone that has got that mind to get there.
That's the potential of saying that they're not right for this job. They wouldn't be. They're too nice. They're not aggressive enough. But equally, the person could go back and say, "Well, what is the company policy and procedure? I'd follow it. If I'm going to do the job, I'll follow it to the T and that will be it."
So, I see both sides of the argument. I think I would definitely take a cautious approach to something like the culture fit, particularly in our jurisdiction. It would just ring alarm bells.
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