Swearing in the workplace

The sacking of Ian Millward, the St Helens Rugby League Head Coach, in May 2005, has brought the employment law consequences of swearing to the fore. Alan Lewis, a partner in the firm of Linder Myers, assesses the current state of the law in this area.

The use of foul and abusive language can, in certain circumstances, justify the dismissal of employees for gross misconduct. Furthermore, if foul and abusive language is used by an employer or a senior employee in a supervisory position, then this could expose the employer to claims for constructive dismissal or discrimination.

There is no general legal principle that the use of swearing by employees is an act of gross misconduct that would justify instant dismissal. Clearly, the use of foul and abusive language in certain workshop and factory floor environments must be commonplace between employees and would not ordinarily justify dismissal. However, where foul and abusive language is used by an employee against his boss, particularly in circumstances where an employee is refusing to carry out a reasonable order, this has been held to justify instant dismissal. Similarly, where an employee uses foul and abusive language in order to intimidate or humiliate a more junior employee, this is likely to expose an employer to a claim in the Employment Tribunal and may also justify the instant dismissal of the employee who used such language. There has been one case, however, where an Employment Tribunal held that where an employee used abusive language in a sudden explosion of temper and under the influence of drink, it was unfair to dismiss that employee without first giving him the opportunity to apologise.

There have been a number of recent cases where the Courts have emphasised that employers who swear at their employees do so at their own peril. In one well known case, a director who said of his secretary that she was an “intolerable bitch on a Monday morning” was held to have constructively dismissed her. More recently, Cantor Fitzgerald International failed in an argument that the fact that it paid high salaries to employees in the City of London could justify the use of swearing and obscenities. Indeed the Court also held in that case that the fact that the employee himself had used foul language in the past in another context did not deprive him of the right to claim he had been constructively dismissed.