Abusive language in the workplace can be costly

Foul
language is commonplace at work, but it is not always deemed unacceptable.  It can, however, pave the way for staff to
bring expensive constructive dismissal claims

Alarm
bells rang loud and clear when a senior worker, who was subjected to sustained
verbal abuse from the chief executive of his company, was recently awarded
£912,000. The case of Horkulak v Cantor Fitzgerald International considers
where the courts will draw the line on permissible language, and prompts HR
professionals to reflect on what they should be doing to avoid such liabilities.

There
is an implied term in every contract of employment that the employer and worker
will not act in a manner likely to destroy the relationship of trust and
confidence between them. A breach of this term by either party is fundamental
to the relationship, and may allow the other party to walk away from the
employment contract. In the worker’s case, such conduct could pave the way for
a constructive dismissal claim.  

A
number of cases in recent years concerning foul and abusive language by the
employer have rested on whether its use destroyed trust and confidence between
employer and employee.

One
example that resulted in a successful constructive dismissal claim, is a comment
from a company director about his secretary. He told another worker, in the
secretary’s presence, that "she is an intolerable bitch on a Monday
morning". Other more common examples involve the use of abusive language
by managers, often in situations when other staff could hear.

Claims
for such language are often defended by arguing that its use is commonplace at
work, and the Horkulak case is one such example. Horkulak, a senior worker at
Cantor Fitzgerald, was subjected over a substantial period of time to abusive
language from the chief executive.

Although
the use of such language was common at Cantor Fitzgerald, the court found the
relationship of trust and confidence between Horkulak and his employer had
broken down because of the employer’s behaviour, and consequently held that
Horkulak had been constructively dismissed.

A
number of key points arise from this and other similar cases:

-
The use of foul language in the workplace is not necessarily deemed
unacceptable, but its use can undermine the relationship of trust and
confidence between employer and employee

-
The test of whether trust and confidence has broken down is an objective one.
This means a court or tribunal will assess how an independent third party would
view the situation, rather than how the employer and worker view it  

-
Regular use of foul and abusive language in the workplace does not sanitise its
effect  

-
Employers must raise and handle issues properly regarding the performance or
conduct of staff (such as disciplinary and poor-performance procedures) without
recourse to intemperate language, no matter how stressful or demanding the
workplace

-
The use of foul and abusive language aimed at or concerning the worker in front
of other staff is likely to aggravate the undermining of trust and confidence  

-
Managers should be trained in appropriate management styles (including
apologising where abusive language is used), and bullying and harassment
policies should state that such language will not be tolerated.

This
short overview should highlight how easy it is to incur liability, even in
workplaces where such language is commonplace. The message is simple: employers
must avoid the use of foul and abusive language when dealing with staff, and
must take steps to ensure that all staff – including the most senior – behave
accordingly. Horkulak’s success and the size of his damages award should give
ample warning to employers to take this matter seriously.

By
Robin Jeffcott, Partner and head of employment, Richards
Butler International