REWARD
“Vibe” can be a lawful reason for hiring someone, unless it’s discriminatory In the case of Kalina v Digitas LBI Ltd, the ET had to consider whether using “vibe” as a reason to pick between candidates for a role was discriminatory, when that “vibe” was based on a racial stereotype of British people. “To determine the claimant’s employment status, the Employment Tribunal examined the specifics of the working relationship” The claimant applied to work for the respondent, and they made it through to the final two candidates for a role. The other candidate identifies as Columbian and is a dual national, holding both British and Columbian citizenship since birth. The claimant identifies as being of Russian nationality. Their heritage is Russian, and that’s where they born and spent their formative years. They’re also a naturalised British citizen. When the client didn’t get the job, they brought various claims, including race discrimination. The claimant argued that the decision not to hire them was because they didn’t fit the British stereotypical employee of someone who was outgoing, enjoyed going to the pub and was relaxed about swearing. They said that they come from a cultural background where going to the pub
an unlawful deduction of wages. For these claims to succeed, the claimant needed the ET to find that they were a worker. The claimant argued that, save for being paid via the CIS scheme and being registered for tax as a sub-contractor, the respondent otherwise treated them as an employee. The respondent argued that they were self-employed as demonstrated by the fact they were CIS registered. To determine the claimant’s employment status, the ET examined the specifics of the working relationship. In doing so, it highlighted various relevant factors, finding that the claimant was: l expected to work set hours l under close supervision while working l expected to use materials provided by the respondent l paid for the hours worked and not by each task completed l under close control, as exemplified by the incident on Christmas Eve and the expectation to book leave in advance. The ET found that the above indicated a workplace tightly controlled by the respondent for its own benefit, with little input from the claimant as to the terms on which they worked, the rate of pay they were entitled to or the hours of work they were required to work. Save for their tax status, the ET held, the claimant was treated no differently from those directly employed by the respondent. As a result, the claimant was found to be a worker. Regarding the deduction of wages for poor work, the ET held that, as the claimant was a worker, prior written consent from the claimant was needed to make a lawful deduction. As there wasn’t any, it was unlawful. The same was found for the failure to pay holiday under the Working Time Regulations.
isn’t a big thing and swearing is frowned upon. They also said it was unusual for discrimination in the recruitment process to be explicit and therefore it was necessary for the ET to determine if it could be inferred from the evidence. The respondent argued that, although the claimant was an acceptable candidate, and as equally appointable as the other candidate, the decision not to hire the claimant was based on the fact the hiring manager “vibed” better with the other candidate and they were a better fit for the team. The race discrimination claim was rejected by the ET. This wasn’t the case of a stereotype that’s so well known that the ET can accept it exists without further evidence, and the claimant had failed to provide evidence of the stereotype of a British employee as they’d described it. The ET went on to say that it wasn’t satisfied that this stereotype of British people exists. At best, it was explained, it would apply to a sub-group of British people and so the inference the claimant put forward couldn’t be made. This wasn’t an issue of race, it was held. There’s nothing to stop an employer making a hiring decision based on a better “vibe”, albeit it should be used with caution, the ET said. It can be lawful, the ET went on, for an employer to decide that somebody just won’t be a fit with the team and that, therefore, it would be difficult to work together. The ET provided an example to illustrate this of 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.” n
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| Professional in Payroll, Pensions and Reward |
Issue 116 | December 2025 - January 2026
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