Workplace banter and swearing: the good, the bad and the ugly

As a general rule most would agree that swearing in the workplace is unprofessional and offensive.

You might find yourself muttering the occasional expletive if your computer packs up or you burn yourself on your coffee, but this is likely ignored by most or even the subject of some amusement. In stark comparison, swearing in conversations with colleagues, particularly supervisors or managers, is overall seen as unacceptable.

Recent developments in case law disagree.

In the case of Dadhania v SAP (UK) Limited et al, Judge Andrew Gumbiti-Zimuto ruled that the F word is now so commonly used that colleagues should not find it offensive as the word lacks the significance it once had. The case in question concerned a Claimant who alleged that her manager had belittled and undermined her by saying “I don’t give a f***” during a meeting.

Importantly, the Tribunal noted that the comment was not intended to cause offense.

The leading takeaway from this is that the context in which profanity is used is important.

It is important from an HR perspective to be aware of the potential for an employee to bring a claim of harassment in response to situations of unwanted verbal or physical behaviour.

Harassment is prohibited conduct and a type of discrimination pursuant to the Equality Act 2010 and is defined under section 26, summarised as follows:

• A person (A) harasses another (B) if:

1. A engages in unwanted conduct related to a relevant protected characteristic; and
2. The conduct has the purpose or effect of:
3. Violating B’s dignity; or
4. Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

A claim of harassment cannot be brought in relation to any behaviour as a result. The relevant protected characteristics for this type of discrimination include age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

Interestingly, case law also indicates that if a Claimant is an active participant in a culture of ‘banter’ and the comments made do not have the purpose or effect of violating the claimant’s dignity then, ‘offensive banter’ may not in fact amount to harassment. In the case of Evans v Xactly Corporation Limited, the Employment Appeal Tribunal upheld that the comment ‘fat ginger pikey’ did not amount to harassment with due regard to the context and relationship between the parties.

In a hypothetical context where the parties did not have a friendly relationship of banter, the comment was intended to cause offence and the claimant had felt offended, there might have been a finding of harassment.

Therefore, it is possible that workplace banter does not always amount to situations of harassment but it is important to be aware of the subjectivity of whether someone might feel degraded, offended or humiliated and the possibility that it could lead to a discrimination claim. In deciding whether the unwanted conduct has the alleged effect in a harassment claim, a Tribunal will consider the perception of B, the other circumstances of the case and whether it is reasonable for the conduct to have had that effect.

Additionally, not encouraging an inclusive and respectful office culture could have negative ramifications for staff retention and productivity.

The Chartered Institute of Personnel and Development (CIPD) sets out a helpful summary of tips for employers on avoiding and handling workplace bullying and harassment, which you can access here.

Our Employment Law Department offers free reviews of your workplace policies and Staff Handbook and can help identify any potential risks to be addressed in your current practices. Additionally, we are able to offer in-house training for managers on topics including Equality, Diversity and Inclusion practices.

Should you have concerns about a potential employment tribunal claim, or simply require guidance on your workplace policies, contact our Employment Law Team on 01202 525333 or by email at employment@ellisjones.co.uk.