“An employee has just complained about his manager swearing at him. This is a tough environment – people swear all the time and the humour is pretty black – how do I handle it?”
In many industries, swearing forms part of the language of the workplace; swear words are normalised and are seldom noticed, let alone complained about. However, when a complaint is made, language which seemed innocuous can give rise to a number of real legal risks.
The most obvious risk arising from swearing at work is that an employee may feel (or say they feel) that swearing has been directed at them rather than used in conversation. Once swearing is directed at an individual, it crosses the line from impolite to abusive and derogatory. An employee who feels they have been sworn at may decide to bring a grievance, and may allege that they have been bullied or harassed by the swearer. This risk is particularly pronounced where a junior employee complains about their manager’s use of bad language as when a manager swears at a junior colleague; the difference in status creates a real risk of resignation and a constructive dismissal claim.
This risk was evidenced in the case of Horkulak v Cantor Fitzgerald, in which a senior employee was subject to a substantial amount of abusive language from his CEO. At Tribunal, it was established that swearing was commonplace in the workplace. However, the Court of Appeal disagreed that swearing was simply “part of the job”. Finding for the employee, the Court summarised that “the frequent use of foul and abusive language did not sanitise its effect”.
Another obvious risk is that bad language often comes hand in hand with “close to the bone” humour, which when examined in the cold light of grievance or disciplinary proceedings can be grossly offensive or discriminatory. This was the case in Reed v CF Fertilisers UK Limited, in which an exemplary employee with almost 20 years’ service was dismissed after using foul language as part of a practical joke. In this case, the Claimant brought a mug to work to cheer up a colleague which he personalised by depicting a conversation between two owls about his colleague’s ex-girlfriend. Unfortunately, the mug made its way into the office kitchen, and was picked up by one of the Claimant’s very few female colleagues. She assumed that she was the subject of the owls’ disapproval and took great offence at their choice of words. The Claimant’s subsequent wrongful dismissal claim was rejected by the Tribunal, who held that his use of language was so offensive that it was “fundamentally incompatible in a grave way” with his contract of employment.
Both cases show that language which appears harmless can have serious consequences. In this case, you may be able to deal with the complaint informally. However, depending on the severity of this language used and the employee’s wishes, you may have to consider disciplinary proceedings.
In terms of wider steps, whilst a ban on swearing may be unenforceable, you should reinforce to all staff that swearing in a targeted, abusive manner is unacceptable. This can be evidenced through a “swearing at work” policy and a well-drafted disciplinary policy. Finally, you should put in place clear rules and standards of behaviour to prevent bullying, harassment or discrimination from being encouraged by a “tough” workplace environment where the line between humour and offence has been blurred.
The main content of this article was provided by Jack Balmer of Tughans in Belfast. Jack works exclusively in Employment Law and should anyone have any queries he may be contacted on:-
028 9055 3300 Website: www.tughans.com
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.
