Swearing at work – what the &*%@?
According to a recent study, swearing at work can help employees cope with stress. The study into leadership styles, carried out by academics at the University of East Anglia, warned that attempts to prevent workers from swearing could have a negative impact. That may well be true, but from an employment law perspective, the advice could be lethal.
The issue of swearing at work is something of a legal fog bank for employers. Although it is not usually made an issue of, swearing in the workplace can easily be exploited by an employee to add weight to a claim for, say sex discrimination, constructive dismissal, bullying or harassment. And if it is the employer who has done the swearing, it could amount to a breach of the implied term of trust and confidence.
Where the incidence of swearing forms part of a claim, a tribunal will look at who swore at whom and, importantly, the type of environment where it took place. There is a much referred-to case, familiar to law students, where an employer working in a fish market swore at an employee – the court held that swearing in a fish market was normal.
Where colourful language forms part of the normal communication in a workplace, then a claim is less likely to be able to lean too heavily on it. The scaffolders currently working outside my window are a good case in point. A court would be likely to say: ‘you all swore at each other all of the time, so you have no cause for complaint’.
Nevertheless, even when an organisation is discernibly tolerant, not every individual may fit into that culture. An employer needs be acutely aware of any employee who, for whatever reason, finds the language of office banter offensive. He or she could easily rely on it as a component of a claim.
Of course, all this advice relates to employees swearing between, and at, each other. The employer should never, ever swear at employees. Not in the course of disciplining them or pointing out faults in their performance and not even by way of joining in the general banter. If there is a falling out some time in the future, an employee may well exploit this as evidence in a claim.
Whether or not swearing relieves stress, the academics drew the line at swearing in front of customers. It’s a relief to know that something is sacred!
As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.