Watch your mouth or pay the price for foul language

In the month the TUC published its guide to appropriate language, two high-profile cases also helped to clarify the law on acceptable communication at work.

St Helens' rugby league coach, Ian Millward, was sacked in May over a string of allegations including the use of abusive language towards an employee. In the same week, Alan Whitehead won substantial damages in a landmark ruling against his employer, Brighton Palace Pier, which in effect prohibits the use of homophobic language at work.

Foul language can cause offence, intimidation and undue stress, which could also impact on the employer - especially if allegations of aggressive or abusive behaviour are not fully investigated.

Duty to investigate

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 a seemingly minor dispute can escalate into a costly and disruptive employment tribunal claim if it is left unresolved. Failure to investigate or make attempts to prevent unacceptable behaviour from continuing may give the victim the right to resign and claim constructive dismissal.

Judgement 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 HR professionals should be aware of.

It is often argued that abusive language directed at a superior undermines or irreparably damages the employer-employee relationship, effectively preventing it from continuing, and justifying disciplinary action. That said, such language is less likely to be tolerated from a senior executive than a shop-floor worker. In the cases of Millward and Whitehead, the employees accused of misconduct held more senior positions, and were therefore under a duty to uphold standards of conduct.

Environmental considerations, such as industry or sector, play an important role in determining the types of behaviour that are generally accepted at work. Conduct that may be commonplace on a building site or football pitch, such as physical or verbal aggression, would be unacceptable in a different environment, such as an office.

Millward's case is interesting as the alleged aggression took place within a sports environment. Although foul language is often tolerated in sport, there is a difference between that used in the heat of the moment in a game, and that used at other times.

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 most cases, but particularly in those involving mitigating circumstances, the employee accused of using foul language should be given the opportunity to apologise to the victim of the abuse and avoid further action.

Mind your language

• Investigate all allegations of abusive or offensive language as soon as they are made
• The accused member of staff must have the chance to apologise
• Take into account exceptional circumstances, such as provocation, stress or personal trauma, particularly when the accused employee has no previous history of misconduct
• Try to address the causes - abusive language is often a symptom of a breakdown in the working relationship
• Assess the status of the employee, the victim, and the nature of the work to establish the likely effect of the language and the appropriate action
• Balance the seriousness of the offence against the likelihood of a recurrence

Russell Brown
Head of employment law, Glaisyers