Swearing at Work: Is It Always Gross Misconduct?

We’ve all had those moments that might push you over the edge, when a word or two said in anger or frustration slips out. However, sometimes swear words are not used just used in a state of annoyance, but are aimed towards colleagues or others with the intention to offend and hurt.

Every instance is context-dependant. Therefore, it can be tricky to know exactly when swearing at work becomes gross misconduct, and when it doesn’t. This article aims to give you a better view of what to do when it ‘hits the fan’.

The Background

In the average UK office, workers hear swear words being said around 11 times a day, with some hearing up to 25[1]. The natural corollary to this takes the form of a question: should employers be discouraging swearing, or even punishing those who do?

It’s clear that organisations must have clear policies in place regarding the use of swearing and offensive language, and that all are aware of what is deemed acceptable. Again, the point is, how much (if any) is deemed acceptable?

Many will often say that a little bit of swearing can release tension, relieve stress and even create camaraderie within the group. But that may not necessarily be so; offensive language can make situations worse. When the situation changes from one merely of frustration to one of swearing at a fellow employee, then that can heighten stress, create tension and destroy any sense of camaraderie. Worse still, it can cross the boundary to outright harassment or discrimination.

Discriminatory or Harassing Language

Under the Equality Act of 2010, offensive language that serves to go against a protected characteristic (race, religion, gender identity, age, disability, marriage or civil status, sex, sexual orientation and pregnancy or maternity) is deemed to be on the wrong side of the law if it is considered discrimination or harassment.

When it comes to discrimination and harassing language the law is strict, even if couched as ‘banter’. Employers can end up facing serious legal consequences if they fail to take reasonable steps to prevent bullying, harassment or victimisation among staff members.

As such, employers have a duty to ensure that training to all employees is provided during onboarding and diversity and equality sessions so that there is a shared understanding of expected standards and compliance with the law. If they fail to do so, they may be subject to claims of vicarious liability (in other words, that the employer is partly to blame for allowing such incidents to happen in the first place, even if not personally involved in the moment).

Responsibilities for Employers

It is important for managers and supervisors to understand their own actions in setting standards within teams, as well as being aware of any policy or procedures concerning swear words or offensive language. Managers should never take advantage of their position by using profanities against an employee, especially during heated situations. Instead, they should demonstrate professionalism and respect when engaging with staff members and be able to de-escalate conflict if needed.

If an employee swears at a manager, organisations need to assess each situation carefully before taking disciplinary action. For instance, if a sudden outburst occurred due to frustration then it may not be appropriate to dismiss them without first offering the chance for apologies. On the other hand, if insubordination is involved then this could constitute gross misconduct and require summary dismissal.

Businesses must also abide by fair procedures when meting out disciplinary action – this includes establishing facts related to the incident and assessing it against the company’s conduct policy. Dismissal should always be viewed as a last resort, meaning it would only be considered if serious behaviour has taken place such as gross misconduct or repeated offences over a period of time which could damage the employer’s reputation due to customer complaints. If an employee has a clear conduct record then mitigating factors may come into play; such as whether they were provoked or acted under duress when using foul language towards another person.

Conclusion

Use and misuse of language is always subjective. As a result, it should be considered in-context and with understanding at all times. To answer the questions posed at the start of this article, is swearing always considered gross misconduct? No. Should employers be discouraging its use? In certain cases, yes. How much, if any, is acceptable? Some, but it should never lead to harassment or discrimination.

The important thing for employers is to ensure parity across the board – do not exempt management from using offensive language if others are to be punished for it. Likewise, ensure that the language used never ‘crosses the line’ into territories that may cause gross offence or insult. As an employer, you must always consider what you would do in the situation wherein one employee complains about the use of offensive language, and how best to deal with it.

If someone at your place of work has said something that you might object to and you’re unsure what to do, or if you need assistance crafting a policy of your own, then why not get in touch with our dedicated team of professional advisors today on [email protected]. Alternatively, you can call us on 01455 444 222 around the clock for impartial advice.

Footnotes

[1] Pure Employment Law. (13^th December 2019). Swearing in the Workplace. https://www.pureemploymentlaw.co.uk/swearing-in-the-workplace/