It has long been a national sport to debate the extent of ‘political correctness’ in today’s society, and how it is out of control to the degree that seemingly innocuous phrases now have the potential to cause offence.
What is or is not offensive language can often depend on the sensitivity of the listener, and although there are groups of words and phrases which will always be offensive, there is a debate to be had over words or phrases that may not be overtly offensive to some.
In the workplace, it is the responsibility of the employer to ensure that their employees are not exposed to language that they may deem offensive or inappropriate. This means the employer must take active steps to ensure they have done everything possible to maintain an appropriate working environment. This is no straightforward task when it is impossible to foresee which words might cause offence. The employer cannot be in every corner of the workplace listening to each and every exchange. So what can they do to discharge this duty?
It helps to first look at the potential claims that might arise where an employee is exposed to offensive language in the workplace. For a start, staff are protected from harassment and less favourable treatment on the grounds of race, sex, disability, sexual orientation, religious belief and age.
The problem for employers addressing this issue does not appear to lie in the extreme. A person using overtly racist language in the workplace is unlikely to be tolerated by either the employer or his colleagues and would most likely be dismissed fairly promptly. Problems tend to arise where language is said in ‘jest’, and where the individuals using the language did not understand or realise the potential offence that could be caused. For example, two managers (one male, one female) may have a work-based friendship where they often joke and tease each other. But if in the context of that relationship the male manager uses a joke connected to the female’s sex, this could potentially constitute harassment under sex discrimination legislation and result in a claim. The individual would then be entitled to compensation for injury to feeling that would be the responsibility of the employer.
The employer that will be most able to defend such an action will have recognised the importance of implementing a framework of policies and procedures consisting of an equal opportunities policy, a protection from harassment and bullying policy, and a comprehensive and accessible grievance procedure. But responsibility does not end there, and a careful employer would provide a training programme where equality and diversity training was compulsory for all staff.
As a further means of policing behaviour and communication in the workplace, employers are also advised to undertake some spot checks on their e-mail and internet systems, with the support of an appropriate policy notifying employees that their e-mail communications are being monitored.
There has been a series of legal cases where the employer has argued that offensive banter was a common and accepted part of the working environment relevant to that industry. In the 2007 case Queen’s Court Ltd v Nyateka, it was determined that an employee would not be precluded from making a claim just because they partook in offensive ‘banter’ themselves.
The employee complained that her line manager had subjected her to racially offensive language. The employer demonstrated that the claimant had frequently used banter of a racist and sexist nature themselves, referring to colleagues as “white bitches”. But the claimant succeeded in her action. Although the award was minimal at £1,250, the employer had spent time and money defending the action, and was also left with a finding of race discrimination against it, which can cause significant problems for an employer’s reputation.
This case highlighted another important issue. When the claimant raised her complaint, she was suspended pending an investigation. This was deemed as less favourable treatment on the grounds of race. Employers dealing with such a scenario would need to make a decision as to how the process should progress. This will depend on the individual circumstances and legal advice should be sought.
There is another important category of complainant. Some individuals may observe the use of offensive language which, although not relevant or directed to them personally, they may still find offensive. That individual also has the right to bring this to their employer’s attention, and if they are then subjected to detrimental treatment (either by the employer directly or by other employees), they can complain to an employment tribunal that they have been subjected to victimisation. This will entitle those individuals to damages for injury to feelings.
The employer should protect those complainants through their policies and procedures. This means that the protection from bullying and harassment policy and the grievance procedure need to have some provision for those who wish to bring such issues to the employer’s attention. This may extend to anonymity if appropriate, and the employer will also need to look at whether they need to have a specific policy for protected disclosures – in other words, whistleblowing.
Circumstances can also arise where offensive or inappropriate language is used but may not be covered by discrimination legislation. This would then result in the employee having a grievance for bullying and harassment. If an employee has been subjected to bullying and harassment but the matter is not properly dealt with by the employer, the individual may bring a claim in the High Court for personal injury damages under the Protection from Harassment Act. To protect themselves, employers should look at training managers to deal with grievances fairly and, in particular, training on how to conduct a fair and thorough investigation.
Vanessa James is head of employment, SA Law
Your policy should address the following considerations:
- Be proactive by setting policies to deal with offensive language (ie, equal opportunities, protection from bullying and harassment, grievance procedures).
- Ensure those who wish to complain about the use of offensive language know they are protected from reprisals, bullying, harassment or victimisation as a result of having raised a complaint.
- Take action to minimise the risk of offensive language being used through structured equality and diversity training for all employees.
- Protect employees who complain of offensive language relating to discrimination from victimisation, even if the complaint is not upheld.
- Ensure that managers are trained to deal with issues concerning the use of offensive language as they arise by ensuring they are aware of and understand the relevant procedures and policies, in particular any grievance procedure.
- Ensure that managers appointed to investigate complaints are trained in conducting a fair and thorough investigation.
- Employers are responsible for providing a safe and appropriate working environment, which includes taking active steps to minimise the risk of offensive language being used in the workplace.
- What actually constitutes offensive language may in some circumstances be a point of debate, so the employer must have in place the appropriate processes and procedures to address this issue.
- Where the offensive language used discriminates against an individual on the grounds of sex, race, disability, sexual orientation, religious belief or age, the employer is at risk of a claim and having to pay compensation.
- An employer that relies on offensive banter being “accepted and commonplace” in their workforce will not be able to preclude claims, even if the claimant used offensive language themselves.
- What is deemed as socially unacceptable changes with the passage of time, so there should be a regular programme of structured training on equality and diversity to ensure practices are up to date.