By Jeya Thiruchelvam, employment law specialist at Harding Evans Solicitors.

Employers need to watch their language in the workplace or risk being on the wrong side of the law. This warning came about as a result of a case involving a London broker who found himself being verbally assaulted by a torrent of foul language and expletives from his employer and as a consequence was recently been awarded in excess of £1 million in compensation.

In June 2000, Steven Horkulak walked out of his £400,000 a year job and filed a claim for constructive dismissal. He argued that he had been insulted and humiliated on a daily basis at the hands of his line manager, and by June 2000 his position had become intolerable. The Court agreed and made it very clear that simply because swearing is commonplace in a particular context, that does not ‘sanitize’ it, nor does it remove its power to offend.

Unjustified or excessive swearing at an employee may well be a breach of the implied term of mutual trust and confidence, irrespective of how embedded swearing maybe in the culture of a particular workplace. This is especially the case if such swearing or criticism is levelled at a manager in the presence of his or her subordinates.

The term of mutual trust and confidence referred to above dictates that an employer must not (at least without justification) pursue a course of conduct, which will damage or destroy the trust and confidence which exists between him and his employees. The term regulates what is acceptable conduct in a variety of ways - unjustified swearing being a prime example. If an employee complains that he is being subject to tirade of abuse and his employer fails to investigate the complaint or take any action to put a stop to it, that employer runs the risk of being unable to successfully defend any ensuing constructive dismissal claim.

However it is important to note that employees also need to be aware of their swearing in the workplace. Although one-off use of obscene language by an employee is unlikely to amount to misconduct justifying immediate dismissal, persistent rudeness to customers or swearing at fellow workers may justify dismissal as long as a fair and proper procedure is followed.

It is imperative therefore that the employee in question is made aware of what is expected of them in clear and unambiguous terms, and also of the timescales within which those expectations must be achieved. If dismissal is a possibility, this must be clearly communicated to the employee with the relevant timescales, i.e. by when must the employee have changed his behaviour if he is to avoid the possibility of dismissal?

You may find that some employees make murmurings about a prohibition on swearing offending their human rights. Employers need not lose too much sleep over such a reference. Whilst it is correct that Article 10 of the European Convention of Human Rights embodies the right to the freedom of expression, and that public bodies must act in accordance with the Convention, it is not correct that an employee who has a tendency to abuse his or her colleagues may be saved from disciplinary action by arguing that they were simply expressing themselves.

In essence employers need to ensure that managers are trained on how to reprimand their staff in an appropriate and effective manner, and conversely that employees are aware that swearing in the workplace may result in their being disciplined.