Dangerous Talk

What
may have once been seen as harmless workplace banter could now land employers
in court. Dan Lavender looks at ways to safeguard against liability

Careless talk in the workplace can prove costly for the employer. Recent
cases show that an employer can be made liable for abusive or ill-judged
remarks made by its employees. Even a single case of verbal abuse may result in
a claim for constructive and unfair dismissal. It is often difficult, however,
to draw the line between conduct for which the employer will be liable and that
which it will not. What is acceptable banter in one office might be actionable
breach of contract in another.

What type of abusive words can give rise to a claim?

There are no hard and fast rules. Some employers might be surprised at the
type of words that can cause problems. Case examples include a local town
council that was held liable for the remarks of a councillor who told one of
the council’s employees: "The sooner we get rid of that bloke the better,
then we can all settle down. I shouldn’t talk to that lying toe-rag, he’s not
worth it." (Moores v Bude Stratton Town Council [2001] ICR 271).

Another case concerned a manager who said in the presence of his secretary:
"She is an intolerable b**ch on a Monday morning." (Isle of Wight
Tourist Board v JJ Coombes [1976] IRLR 413) and in Courtaulds Northern Textiles
v Andrew [1979] IRLR 84, the employer was liable for the words of an assistant
manager who said to another employee: "You can’t do the bloody job
anyway."

Employers have also been found liable where an employee has been unfairly
and improperly accused of theft (Robinson v Crompton Parkinson Ltd [1978] ICR
401). The situation in which the words are said is also relevant. In Morrow v
Safeway Stores IRLR [2002] 9, a bakery manager was criticised by her boss in
public who said: "If you can’t do the job I pay you for then I will find
somebody that can."

What test will the court apply?

It is an implied term in every contract of employment that the employer
"will not, without reasonable and proper cause, conduct himself in a
manner calculated or likely to destroy or seriously damage the relationship of
confidence and trust between the parties" (Western Excavating (ECC) Ltd v
Sharp [1978] ICR 221). Not every incident of verbal abuse will enable the
employee to bring a claim. It is for the employment tribunal to establish
whether a breach is serious enough to ‘destroy or seriously damage the
relationship’. Thus, had there been good reason to suspect the employee was
guilty of theft, the employer in the Robinson case would not have been liable.

In each case, the test the court will apply is whether the employer is
responsible for conduct which is ‘repudiatory and sufficiently serious to
enable the employee to leave at once’ (Lewis v Motorworld Garages Ltd [1985]
IRLR 465). The correct approach is to decide whether the act complained of is
serious enough to be considered as showing that the employer will not be bound
by the terms of the contract. If so, the contract will inevitably have been
breached.

The test is objective – not every criticism, even trenchantly expressed, of
an employee’s performance will lead to a claim for constructive dismissal. In
the Moores case, the court indicated some of the factors that would be
considered in deciding whether the implied term has been breached:

– Was the verbal abuse ‘authorised’? In other words, did it come from some
senior person in the employer’s organisation and thus seem to have the
authority of the employer behind it.

– Was a timely retraction or apology offered by the employer?

– If an apology was offered, was the employee too sensitive or inflexible in
treating the relationship as having irretrievably broken down?

– Could the incident have been reasonably foreseen and, if so, avoided?

It stands to reason that the tribunal will also take account of the
employee’s conduct. This may be relevant in showing there was ‘reasonable and
proper cause’ for the employer’s remarks or in order to demonstrate that a
complaining employee uses equally colourful language or abusive words. What is
sauce for the goose will, inevitably, be sauce for the gander.

Even so, there must be a limit to the abuse that any employee can be
expected to tolerate. Where there is persistent unjustified criticism or verbal
abuse and where the employer, knowing of it or having good reason to suspect
it, has taken no steps to prevent it, the tribunal is more likely to treat the
verbal abuse as ‘authorised’, more likely to treat the apology as necessary and
more likely to treat the harm done as irremediable. The message appears to be
that employers who ignore abusive behaviour or a bullying manager do so at
their peril.

What is the test for racial or sexual harassment?

A different test applies in racial or sexual harassment cases. In these the
test is subjective. In the leading case of Reed v Steadman [1999] IRLR 299, for
example, the Employment Appeal Tribunal held that, in relation to sexual
harassment, the issue is whether "the words or conduct [are] unwelcome to
the victim and it is for her to decide what is acceptable or offensive. The
question is not what (objectively) the tribunal would or would not find
offensive."

When will the employer be liable?

Although many cases relate to abusive remarks made by directors or senior
employees, the courts will often make an employer liable for the conduct of
middle managers or, on occasion, more junior employees.

Whether such liability is imposed will depend on whether it can be fairly
said that the conduct complained of took place ‘in the course of employment’.
It will usually be necessary to consider whether the act complained of was
reasonably incidental to the duties of the employee. The courts have often
approached ‘vicarious’ liability as a question of whether it can be said the
employer exercised ‘control’ over the employee in respect of the activity at
issue.

In relation to constructive dismissal, it has been made clear that an
employer can be liable for the conduct of any ‘supervisory employee’ whether or
not that person had the power to dismiss other employees. "If the
supervisory employee is doing what he or she is employed by the employer to do
and in the course of doing it he or she behaves in a way which, if done by the
employer, would constitute a fundamental breach of contract between the
employer and the applicant, then in our judgement, the employer is bound by the
supervisory employee’s misdeed." (Hilton International Hotels (UK) v
Protopapa [1990] IRLR 316).

In practice, the more junior an employee, the less likely it is that the
employer will be held liable for a single incident of verbal abuse – although
employers should note that liability could still arise where persistent abuse
is tolerated and not acted upon.

Dan Lavender is a solicitor with Macfarlanes

Guidelines for preventing liability

– Have a clear policy that abusive
comments will not be tolerated and, where appropriate, take disciplinary action
against wrongdoers.

– Implement the policy for all staff,
taking care that all supervisory employees are aware of their responsibilities
and are trained to manage issues concerning verbal abuse in the workplace.

– Where verbal abuse does occur, try
to limit damage by apologising and making clear that the conduct is not
authorised.

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