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Thanks to Butterworths.co.uk
Bad language in the workplace
A �1m payout to a former managing director who complained that his boss used
language of "criminal intimidators" sent ripples of warning to
employers that bad language will not be tolerated. Under what circumstances can
this amount to constructive dismissal? Alan Julyan, employment partner at
Speechly Bircham talks to Jon Robins...
Earlier this month Steven
Horkulak, a former managing director at Cantor Fitzgerald, was awarded nearly �1m
in damages after a High Court judge ruled that his former boss had a
"dictatorial style" and sometimes reverted to "the language of
criminal intimidators". According to Alan Julyan, employment partner
at Speechly Bircham, the Cantor Fitzgerald case and the earlier case of David
Morrison Oglivie and Neyrfor-Weir Ltd [May 2003] has resulted in the courts
giving a clear warning to employers that bad language does not have to be
accepted in the workplace. He talks to Jon Robins about the impact the cases
will have on employers and the conduct of their relationship with employees.
Julyan points out that the two recent cases do not make new law.
"The use of bad language towards employees has often been upheld by the
courts as good grounds for claiming constructive dismissal," he says;
adding by way of example the case of Palmanor Ltd v Cedron [1978].
"What the cases do make clear is the courts attitude toward such behaviour,"
he continues. "The cases dispel the idea that employees should accept bad
language as normal behaviour in their respective industries even if such
language is the common currency employees can still be offended by its
use."
Julyan explains: "In both cases the court made it clear that the
expression �if you can�t stand the heat get out of the kitchen� may not
dictate to the court how to interpret the behaviour and conduct of employers and
the impact bad behaviour has on employees regardless of how much they are
paid."
Nor does the lawyer anticipate the cases "opening the
floodgates" to other cases being brought against employers. "In each
case there was a pattern of behaviour beyond the mere use of abusive language
that undermined the implied term of trust and confidence and offended the self
esteem and dignity of the employees," he says. "Indeed in the Cantor
Fitzgerald case some of the language used was described as the language of
�criminal intimidators�."
However, Julyan argues that the cases do serve notice on employers that a
failure to monitor and stamp out bad behaviour of this kind could result in
claims being made for constructive, wrongful and unfair dismissal. As a word of
caution, the solicitor, suggests that employers particularly need to take note
of these decisions if the employment contracts contain restrictive covenants. He
says: "If employees are seeking to find a way out of their post termination
contractual obligations they may provoke this type of behaviour to allow them to
walk away from those obligations."
"The success these employees have had in challenging bad behaviour
may encourage others to question what type of behaviour should be
tolerated," he says. "It is to be hoped that management will lead by
example and clamp down on behaviour that is not only offensive but can cause
real distress and harm to employees." (21/08/03)
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