Is bad language good for business?

by Sarah Dodds

A recent study conducted by the University of East Anglia has found that swearing in the workplace can be good for stress and team building. However, before staff start turning the air blue, we would urge caution. In this bulletin we look at how a permissive approach to bad language could still spell trouble for employers.

The Research

Professor Yehuda Baruch, a professor of business and management at Norwich Business School carried out the research to look at the importance of ‘non conventional’ and ‘uncivil’ language in a work environment.

He found that swearing is used on a continuous basis in the workplace, although not necessarily in an abusive manner. Lower level employees were found to swear more but swearing in front of upper management and clients was generally avoided and deemed to be inappropriate.

Professor Baruch commented: ‘Our study suggested that in many cases, taboo language serves the needs of people for developing and maintaining solidarity, and as a mechanism to cope with stress. Banning it could backfire.’

The study suggests that the challenge for managers is to understand when to ‘turn a blind eye to communication that does not meet their own standards’. However, although a permissive policy and liberal attitude towards bad language may seem like a common sense approach, it is a dangerous path to take so far as employment law is concerned.

Allowing bad language in the workplace opens the employer up to the risk of employment tribunal claims and cases in the courts. In the tribunal the two biggest areas of concern are discrimination and constructive unfair or wrongful dismissal claims.

Legal Issues

With the raft of discrimination legislation that now exists, there are more potential avenues for a harassment claim concerning bad language than ever.

There are a number of definitions of harassment, but broadly speaking it is ‘unwanted conduct on the grounds of race, religion or belief, sex, sexual orientation, disability or age which has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.’

The problem for employees is that language that could be inoffensive to one member of staff may be considered discriminatory by another and there is no requirement that the person using the bad language intended to harass.

Having said that, for a claim of sexual harassment to succeed, the harassment does not need to be of a sexual nature.  In these cases the language used can simply be ‘on the grounds of someone’s sex’. This wide definition means that any language that could be offensive to someone because of their sex is potentially discriminatory.

If a worker makes a complaint of harassment due to the comments of another staff member then a claim can be brought against the employer, not just the member of staff who made the comments.  Although employers can defend themselves against such claims by demonstrating that they have taken reasonable steps to prevent the offending behaviour, endorsing a permissive approach to bad language would run counter to this.  This means that, whilst bad language may help to reduce stress within the workforce, employers should be pro-active with regards to dealing with employees who use it.

Employers should also be aware that offensive language outside the workplace, but connected to employment, for example on a work night out, could also be held to be the employer’s responsibility.  Having policies in place which specifically highlight that bad language or offensive comments will not be tolerated in the workplace or at any work related function or event can help with this.

Constructive Dismissal

Even if the offensive language falls outside the protection offered by discrimination legislation, it may be possible for an employee to claim constructive unfair dismissal.

A claim of constructive unfair dismissal comes about where there has a fundamental breach of the employee’s contract of employment by the employer that entitles the employee to resign. The use of bad language in the workplace could constitute a breach of contract for these purposes.

In the case of Horkulak v Cantor Fitzgerald the Court of Appeal held that an employee was entitled to resign and claim constructive dismissal after he was subjected to abusive language over a substantial period of time. It was held that the use of abusive language and the employer’s failure to stop such language amounted to a breakdown in the mutual obligation of trust and confidence. The employer in this case had argued that there was a culture of ‘robust language’ in the workplace and that it was part of the job. The Court of Appeal rejected this argument and held that ‘the frequent use of foul and abusive language did not sanitise its effect.’

Having said that, the use of bad language in the workplace is not necessarily unacceptable, but it may break the implied term of mutual trust and confidence that applies to all employment contracts if language is used in an inappropriate or abusive manner.  The test is whether a reasonable person would view the permitted use of such language as a breach of mutual trust and confidence.  However, the Horkulah case shows that the “Gordon Ramsey” approach of trying to argue that bad language is the norm is unlikely to succeed as a defence.

Other Problems

Another problem concerning the use of bad language in the workplace is that although it may be a short term release for stress, it does not tackle the issue of stress in the workplace on a long term basis and may be just masking more serious underlying issues. Rather than permitting the use of bad language, the cause of the bad language should be addressed.

Our advice is to ensure that all staff are made aware of the fact that bad language can amount to bullying and harassment and what the consequences of this can be. Training should be offered to staff explaining the employer’s rules on language and all those involved in staff management should be trained in how to deal with disciplinary and other personnel matters without resorting to bad language.

The research may show that swearing at work decreases stress among the workforce, but allowing it to continue will certainly do nothing to decrease the stress levels of employers especially if it leads to a claim.   Act now and take a pro-active approach to curtailing bad language within your organisation.

To find out more about Professor Baruch's research, visit the University of East Anglia

For further information on the employment law aspects of workplace swearing, contact the employment law team of Burnetts Solicitors on 01228 552222.

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Nov 2007