Consistency key on swearing rules

Last updated 08:09 07/11/2012

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OPINION: F.... Oops, am I allowed to say that, asks Brian Richardson in Work to Rule.

We all know that from time to time some words just slip out. Even the most conservative, proper people sometimes let slip with a word that would not normally pass their lips. It can be quite funny because it is so unexpected or it can really emphasise an emotion, again because it is so unexpected.

What employers and employees have to be mindful of is, where is a word's use acceptable and where is it unacceptable?

There have been several cases taken where an employee has been fired for unacceptable use of foul language.

In some cases, the dismissal has been justified and, in others, the dismissal unjustified and in some others, where it is a side issue, it has been ignored.

What are the general rules around swearing in the workplace and what are the implications of swearing in the workplace?

Most employment agreements that we see, and almost all that we draft, have included in them that the use of "foul or obscene language" is serious misconduct, and therefore would justify summary dismissal.

What an employer has to be aware of when trying to enforce this rule when someone goes too far and offends someone else is whether they have been consistent in applying the rule before.

It is generally accepted by the courts that where swearing or the use of certain language is an accepted part of the workplace then the employer cannot suddenly enforce an arbitrary rule and dismiss someone for something that had previously been acceptable.

If someone tells another person to "f... off" and the word f... is in general use around the worksite then the person cannot be summarily dismissed, even if the employment agreement says that they can be.

The employer would have had to have made staff aware before that the use of such words was unacceptable and what the consequences were for using such language.

A sudden change in the "custom and practice" in the workplace would almost always be found to be unjustified if a dismissal resulted.

Even telling the boss to "f... off" may not be grounds for dismissal where such a phrase has been used before with no or few adverse consequences for the utterer of the phrase.

According to a recent article in the publication Employment Today (August 2012), the use of swearing in the workplace can have an effect on someone's career.

In the reported survey it was found that "64 per cent of hiring managers said they would think less of a person who repeatedly used swear words, and 57 per cent said they'd be less likely to promote someone who swears in the office".

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"Employers said swearing brings the employee's professionalism into question (81 per cent), shows lack of control (71 per cent), a lack of maturity (68 per cent) and makes the employee appear less intelligent (54 per cent)".

From the point of view of what happens when a boss swears I would suggest that similar figures would be found with respect to their swearing.

I would suggest that a boss swearing would undermine the respect that the boss was held in, by the employees and those they came into contact with (unless of course those people swore too, when it would be like a meeting of minds).

Swearing can be funny and when used out of the blue it can have a real and even positive effect. You only have to remember the "bugger" advertisements on television to see that.

What employers have to remember is that if they find certain language unacceptable in the workplace they need to be consistent in their condemnation of it and not to just rely on enforcing an arbitrary rule in the employment agreement when it suits them.

Staff need to know what is acceptable and what is not. They need to know the boundaries.

And, if the employer is thinking of taking disciplinary action over someone's swearing then they need to know the context in which the swearing occurred and what the general tenor is of the language used in the workplace, especially when the boss is not there.

As with all articles in this series, the final word is that when considering taking action, the employer needs to follow a fair process.

» Brian Richardson is an employment and human resources adviser at Preston Russell Law. E-mail questions to:  brian.richardson@prlaw.co.nz.

- © Fairfax NZ News

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