Workplace culture hinges on context and language, says Fudia Smartt, employment partner at Spencer West LLP, unpacking a tribunal ruling that sided with the swearer.
A recent employment tribunal ruled that an employee was unfairly dismissed from his work despite his having verbally abused a fellow colleague during an office discussion by calling her a “f***ing m**ng”.
The judge commented that swearing has become more commonplace stating that: “I am satisfied that swearing should not be acceptable in a workplace, although common everyday experience, particularly in the North is that the F word is used quite often spoken in the public sphere.”
Taking this into account and the employer’s workplace culture, the tribunal judge ruled that the claimant was unfairly dismissed as there was a “significant amount of banter” in the office.
However, this judgment does not mean that swearing at others at work should or would be without consequence in the future. When considering whether swearing amounts to misconduct, context matters.
Culture matters
Factors a tribunal is likely to take into consideration include the particular workplace culture and the generally accepted standards of the workplace in question; whether there has been damage to an employer’s reputation; the status of the parties’ concerned, for example, seniority; whether one party has been provoked or not; if the language has been used in the heat of the moment; and whether there are any mitigating circumstances.
It is important to remember that this judgment was only at the employment tribunal level and therefore is not binding on other tribunals. Therefore, this case is unlikely to open the floodgates for staff to swear with impunity. Instead, this case can be seen as being in keeping with the zeitgeist of less formal, colloquial style of communication. Nevertheless, employers can (and many do) prohibit the use of offensive language to avoid others being upset by such language.
Employers should look at putting proper HR policies in place to avoid any ambiguity regarding workplace culture, banter and the use of swear words. Afterall, just because some colleagues may have no issue with expletives does not mean that all staff members will find them acceptable. To avoid situations that may lead to complaints, employers should be mindful to educate staff in this area and not just have policies in place that get forgotten.
Further, it is entirely possible that the choice of swear word or banter could lead to potential discrimination and harassment claims, which employers have a duty to take reasonable steps to prevent (including in relation to sexual harassment).
Unlawful harassment
As a timely reminder, it is worth bearing in mind that the Equality Act 2010 defines unlawful harassment as a person engaging in unwanted conduct related to a relevant protected characteristic, which has the effect of either violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Consequently, what is deemed to amount to “harassment” will therefore vary from person to person and their subjective perception. As such, one person’s harmless fun and “banter” can be deeply distressing to the next person.
So as with all employment-law related matters – balance, nuance and having an awareness of the impact on others is key. Therefore, employers and employees alike would do well to temper their speech as they could otherwise find themselves in hot water for letting the expletives fly!
