The use of foul and abusive language should be a serious concern for any employer. The danger of having a bad language culture is the creation of a hostile and intimidating environment which may give rise to claims for bullying and harassment. Blue language on the part of an employee may justify summary termination on the ground of gross misconduct. Equally if foul and abusive language is used by an employer or a senior employee in a supervisory position, this could expose the employer to claims for constructive dismissal should the bad language cause the employee to resign from employment, harassment or discrimination.
Bad Language
Bad language does not have to be accepted in the workplace. Even if such language is commonplace employees can still be offended by its use. Therefore it should not be accepted as normal behaviour. The key is whether the pattern of behaviour undermines the implied duty of trust and confidence between the employer and employee, and offends the self esteem and dignity of the employees. For example if an employee experiences ”offensive, abusive, intimidating, denigrating, bullying, humiliating, patronising, infantile, and insulting words and behaviour”, an employer has a duty to take steps to do something about it. A reasonable employer should do so once it knows or ought to have known of such behaviour. Swift intervention on the part of the employer is likely to prevent the break down in the relationship of trust and confidence.
Key Points
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The use of foul and abusive language in the workplace can undermine the relationship of trust and confidence leading to claims of constructive unfair dismissal, harassment or discrimination.
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The test of whether trust and confidence has broken down is an objective one, rather than how the employer views it. An employer may consider something to be normal workplace banter – an employment tribunal may not.
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Regular use of foul and abusive language in the workplace should not make it acceptable.
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In order to avoid claims of breach of trust and confidence or vicarious liability for harassment or discrimination, employers must raise and address issues of offensive or abusive language, irrespective of how stressful or demanding the workplace environment is.
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Managers should be trained in appropriate management styles, including how to deal with incidents of abusive language should they occur (i.e. seeking apologies where abusive language is used).
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Bullying and harassment policies should state that such language shall not be tolerated.
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