Deciding what kind of cursing at work ought to be investigated and might lead to a disciplinary process can be a hazard for employers. How far is too far when it comes to colourful language in the office?

Considering one survey found that almost 90% of Britons swear (an average of 14 times a day), drawing the line of what stops being acceptable is going to require a careful balancing act.

The risks to employers of workplace swearing

If a disciplinary process is undertaken unfairly, it can lead to an employee pursuing claims in an employment tribunal claim.  There is also a risk an individual argues the swearing has been seized on as a pretext to dismiss them on discriminatory grounds or because they have blown the whistle.

An eye catching recent example is that of a former Serious Fraud Office lawyer, who was fired for swearing and insulting an FBI agent, during a meeting which ended up in a nearby pub. The lawyer is claiming his actions did not, “justify the termination of his employment” and that they were not out of the ordinary for a conversation between criminal lawyers and partner agencies.

What to do if swearing has occured in the workplace

In the case of swearing, context plays a key role in assessing an employee’s behavior, which cannot be viewed in isolation. Below are several factors that can provide context and shed light on the approach to take when evaluating a situation in which swearing has happened:

  • Is the language used usually tolerated or commonplace in the workplace?
  • Will it damage the reputation of the employer?
  • Is the language the result of provocation or an outburst in the heat of the moment?
  • What is the position of the individual in the hierarchy of the organization? Would a director swearing at a junior member of staff be more or less of problem than vice versa?

There is a clear difference between a bricklayer swearing along with colleagues on a building site and a doctor swearing in front of a patient.           

Steps employers can take to prevent problems from arising

In order to reduce the risk of unfair dismissal or even discrimination and whistleblowing cases, employers can take simple steps. Clear written guidance on what are acceptable behaviours at work, or external work events and even on social media coupled with effective training will reduce the risk of unfortunate incidents occurring.

The ever-changing nature of language and the differing sensitivities of those uttering and those receiving certain phrases or words, creates ambiguities over what is acceptable.  Over time some words lose their shock factor and merge with the “just about acceptable” lexicon in due course; what passes for everyday exclamation today might have been an unspeakable transgression a few generations ago.  In recent times, the coarsening of political debate and the rise of social media, fomenting strong opinion or worse, may be accelerating changes to norms of acceptability.  Those norms are however, less likely to be acceptable in the workplace.  This will always be a notoriously tricky area for employers and employees alike.

Training and awareness

Fox & Partners offers bespoke training. To find out more on this topic, please visit our website at https://www.foxlawyers.com/ or call us on 020 7618 2400.

The content of this article is not legal advice and is not intended to provide more than general commentary on the subject matter. Specialist employment law advice should always be sought about your specific circumstances.

About the author – Eleanor Diamond:

Eleanor is an Associate at Fox & Partners, specialising in employment and partnership law. If you require further information, please contact us on 020 7618 2400.

Eleanor Diamond

Associate

ediamond@foxlawyers.com
DDI: +44 20 7618 2402
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