Managing language in the workplace: legal considerations for HR professionals

Citation

Brown, R. (2006), "Managing language in the workplace: legal considerations for HR professionals", Human Resource Management International Digest, Vol. 14 No. 1. https://doi.org/10.1108/hrmid.2006.04414aab.001

Managing language in the workplace: legal considerations for HR professionals

Managing language in the workplace: legal considerations for HR professionals

Foul language might be acceptable in certain working environments, but it can cause insult, intimidation and undue stress which could impact on the employer, especially if all allegations of aggressive or abusive behavior are not investigated fully. Russell Brown, head of employment law at Manchester firm, Glaisyers, highlights some important considerations for HR professionals dealing with allegations of bad or offensive language.

Any employer or manager who relies on a heavy handed leadership style is now more likely than ever to find him or herself facing a claim of unfair dismissal from an increasingly empowered and legally informed British workforce. Those who use threats to increase productivity and punish inefficiency with verbal intimidation should be warned that greater awareness of employee protection laws mean the days of aggressive management styles are disappearing fast.

Equally, employees who use verbal or written abuse towards their superiors and other colleagues should expect to be taken to task for their behavior and could face dismissal if the seriousness of the offence and the likelihood of recurrence warrant it.

Judgment call

There are no hard and fast rules to deciding whether or not disciplinary action or dismissal on the grounds of abusive language is fair, but there are several common issues that an employment tribunal will take into account when considering matters of this nature, which human resource (HR) professionals should be aware of.

Duty to investigate

New dispute resolution regulations provide businesses with the tools to clamp down on workplace aggression and intimidation without resorting to, or being subjected to, legal action. It is the employer’s duty to investigate all complaints as soon as they arise, as seemingly minor disputes can escalate into costly and disruptive employment tribunal claims if left unresolved. Failure to investigate or make attempts to prevent unacceptable behavior from continuing may give the victim the right to resign and claim constructive dismissal on the grounds that trust and confidence in their employer has been compromised.

Protecting professional relationships

If the abusive language is directed towards a superior, it is often argued that it undermines or irreparably damages the employer-employee relationship, effectively preventing the working relationship from continuing and justifying disciplinary action or even dismissal. In MacIsaac v. James Ferries and Co. Ltd EAT 1442/96, for example, Mr MacIsaac was dismissed after an abusive outburst towards his superior, which was considered serious enough to have caused an irreparable breach in their working relationship, making its continuation impossible.

Similarly, in Stanley v. Window-Tech (Trade) Ltd ET Case No.3203351/99, Mr Stanley’s employer was judged to have dismissed him fairly after he described a superior in obscene terms in earshot if other colleagues. It was judged that he had been trying to undermine the authority of his superior and therefore endanger several working relationships within the company.

Contextual concerns

There is no doubt environmental considerations such as industry, sector or department play an important role in determining the types of behavior which are generally accepted in the workplace. For example, conduct that may be common place on a building site or football pitch, such as foul language and physical or verbal aggression, would be unacceptable in a different environment such as an office. Considering this, it might be wise to accept some “shop-floor” language in certain non-customer facing departments, as long as this is not considered obscene or threatening.

In Futty v. Brekkes (D and D) Ltd [1974] IRLR 130, for example, a works foreman remarked to his employee, a fish filleter on Hull docks, that if he were dissatisfied with his employment he could, in no uncertain terms, “f*** off”. The issue arose as to whether this amounted to an act of dismissal or whether the employee was entitled to resign and claim unfair dismissal. The court ruled that such language was not unusual on Hull docks and should not have been taken as an act of dismissal.

Bad language from an employee whose role brings them into contact with customers and clients, however, can affect the employer’s business reputation and can often be used to justify more serious action being taken.

Equally, foul or abusive language is less likely to be tolerated from a senior executive than from a shop floor worker. In the cases of Whitehead v. Brighton Palace Pier, the employee accused of misconduct held a more senior position than his victim and was therefore under a duty to uphold standards of conduct and avoid using abusive language.

The bigger picture

Cases of unacceptable language resulting from exceptional circumstances, such as intense provocation, stress or personal trauma, involving those with unblemished records of conduct, are likely to be treated more leniently by a tribunal.

In Townsend v. Hereford and Worcester Ambulance Service NHS Trust ET Case No.5205700/99, for example, ambulance driver Mr Townsend was dismissed after verbally abusing a call center supervisor when she made a complaint about him returning to his duties late after a regular break. His employer claimed that Mr Townsend’s use of bad language in the past was a factor in its decision to dismiss him. The Tribunal took a different view however, ruling the dismissal unfair because of the intense pressure Mr Townsend had been under since the death of his son four months previously, which had resulted in him taking three months off work with stress. Mr Townsend’s written apology to the victim of his abusive language, in which he said that he deeply regretted the incident, also stood in his favor.

Out of hours

Office parties, “away days” and other social events can precipitate the use of bad language among workers, particularly when they involve alcohol. Employers and employees should bear in mind that many rules of work etiquette still apply, no matter how relaxed the atmosphere seems, and they should not be lured into feeling that they can behave as they would among friends. Swearing or the use of derogatory or offensive language in the presence of clients or other members of the public can potentially damage company reputations and could justify a warning or other disciplinary action. Getting this message across without being a party pooper can be tricky.

Keep a diary

An employee’s unacceptable actions should be recorded on his/her personnel file and a history of behavior taken into account when making a disciplinary judgment or considering the fairness of a dismissal. An employee who ignores previous warnings about their behavior and is consequently dismissed is less likely to successfully appeal his or her employer’s decision or indeed succeed at a tribunal. On the other hand, a single burst of bad language from an employee with an otherwise flawless history is unlikely to justify dismissal. In most cases, but particularly in those involving mitigating circumstances or out-of-character behavior, the employee accused of using foul language should be given the opportunity to apologize to the victim of the abuse and avoid further action.

Gross misconduct

In the most severe disciplinary cases an employer may feel that they are forced to dismiss a member of staff immediately, or almost immediately, for gross misconduct. Employers are advised to always suspend with a view to completing a thorough investigation before dismissing, given that failure to do so again exposes employers to the risk of a claim for unfair dismissal. Given that employers are required to follow a fair procedure and demonstrate that their actions were reasonable in view of the circumstances, the absence of a thorough investigation will be viewed with concern by an employment tribunal.

Conclusion

Despite several gray areas and wide ranging scenarios, any employer, no matter what business they are in, must uphold acceptable levels of behavior and discipline and bring to account those who break the rules. A culture of positive leadership and accessible forms of advice and support for all employees are key to combating unacceptable behavior at work and retaining a motivated and committed workforce. Employers who use or tolerate bad language not only endanger their business reputation, but also jeopardize the trust and confidence of their employees – an affliction that is likely to cost them dearly.

Russell BrownHead of employment at law firm Glaisyers. He can be contacted on rwb@glaisyers.com