Ask a Lawyer: Can you fire someone for culture fit?

What happens if your new employee isn’t team-orientated or doesn’t think outside the box?

Ask a Lawyer: Can you fire someone for culture fit?
Creating a strong company culture is of critical importance for many HR professionals but it’s simply not possible without the right people on board – so what happens if you’ve accidentally brought the wrong candidate into the ranks?

Whether it’s a reluctance to share ideas, an inability to think outside of the box or even a blatant disregard towards learning and development, there are certainly some behaviours which might not fit with the culture you’re trying to create – but do they really warrant dismissal?

Hamish Kynaston is a partner with top law firm Buddle Findlay – he says the behaviour would have to be pretty serious but it’s definitely within the realms of possibility.

“You might be able to dismiss someone in those circumstances if the way they’re behaving is so at odds with the approach the organisation takes but that would need to be described in a concrete, definite way in order for it to be lawful,” Kynaston tells HRD.

“One way that might happen is where an employee has such a different approach to the way they go about things, a way that is so at odds with the culture of the organisation, that it breaks their workplace relationships,” he continues.

“If they’re breaking important relationships across the organisation and they’re becoming incompatible with individuals who they need to be able to work with effectively, then yes, I think you could argue for lawful dismissal.”

However, while it is theoretically possible to fire someone over culture fit, Kynaston says employers should make absolutely certain they’re not straying into discrimination.

“You’d need to take care around that because plainly it wouldn’t be lawful to dismiss a Pakeha person in Maori organisation simply on the basis that they’re Pakeha – or vice versa,” says Kynaston.

“You couldn’t dismiss someone for coming from a particular ethnic or racial background so you would need to tie it to more definite factors that aren’t race-based or gender-based or to do with a person’s age or disability – it would need to be something that is well clear of any of the grounds of discrimination under the Human Rights Act.”

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