Teasing or testing, swearing or stating? How to say what you mean, and mean what you say………


NOW those of you who know me know my language at times can be a little colourful, as my mother would say. However I have learnt over the years when to allow this trait of mine to slip out and when to hold it in (mostly!).

A while back Allen & Overy LLP questioned more than 1,000 office workers to find out what your average worker felt was appropriate to say and joke about, and what was no longer acceptable. They wanted to establish if the workers of today could distinguish between banter and bullying. 80% said initially that they could but when further, and specifically questioned it appeared that the lines were more blurred.

I’m sure we can admit to flippant remarks such as

  • their wife/girlfriend can’t park?
  • Who says their husband/partner can’t do more than one thing at a time?
  • And who thinks their mother is past being able to use a computer or send text messages?

Does this resonate with you? Amusing as these comments are, and also commonplace in a work environment, it’s these very remarks that can get you, the employer into hot water.  Now I’m not trying to kill the vibe at work, I’m just trying to keep you out of court! Let’s look at the survey figures some more.  Apparently 46% still felt those naked calendars and pictures are acceptable to be openly displayed at work, blissfully unaware of any potential unlawful implications; unaware that these could be perceived as creating an intimidating, hostile or offensive workplace.  72% thought cracking ‘baldy’ jokes was ok at work, and 59% said they didn’t think it was unlawful to swear a work, despite such swearing, if based on a legally protected characteristic such as gender, potentially leading to a discrimination claim.

The most interesting though for me is that 78% wouldn’t think twice giving a colleague a gift at work, even if they didn’t know them that well. Some of you will shudder at that, others will question why it’s an issue. The issue is it’s not how it is intended,  rather how it is received and in law it being ‘common place’ , is not a defence, nor is that it was intended as a ‘joke’ if someone takes offence and raises a claim.

Let me put that last one into context. When I worked in ‘corporate world’ I had to deal with a complaint from a woman her early twenties; she had received a beautiful classic figure hugging black dress from a secret admirer, all nestled in red tissue paper and boxed with a big ribbon. Wow I hear some of you cry, but she was horrified. Why? Because it was sent from the someone she hardly knew, in a different department to her, and he was a little, er, odd shall we say. She felt threatened and scared by the act, unnerved if you will.  Fortunately we were able to ‘nip it in the bud’ as it were and after a gentle chat with the chap, an informal apology if he had caused offense and he in no means had intended that we were all able to move on.  This one thoughtful and yet thoughless act could have so easily blown up into something much more serious, but for the practical approach we took.

So hands up how many of you have a spare £10k+ in your business bank account to give away? No? Really? Funny that, I thought not. Well that is the suggested level for an average pay out in employment tribunal for discrimination/harassment and bullying claims. A sobering thought.

So how can we protect our staff from unwanted comments and actions, protect the business from claims and yet still keep that friendly environment we all pride ourselves on?  Well I have a few suggestions below:

  • First have a clear policy, a set of guidelines about what you and your company believe to be appropriate and inappropriate and the consequences of failures to follow these guidelines.  I’ve said it before, it is more critical than ever to make sure your staff know what they can say and do, or, as importantly, what they can’t or shouldn’t.
  • Next communicate that policy.  Please don’t go to the time, and expense of having it if it is just going to be stuck on a shelf or in a drawer. Let the staff know, share it with them.  It’s important to raise individuals’ awareness of others’ feelings through training and briefings, including giving examples of what can offend people. Maybe a spot of diversity and equality training wouldn’t go a miss?
  • Then you and your managers/supervisors must set the standards of behaviour and must ‘walk the walk’ and ‘talk the talk’ to create and reinforce the atmosphere you want.  Challenge anything you think inappropriate and also allow people a forum to raise concerns in a positive way, ensuring their concerns are heard and taken seriously.
  • That’s my next key point – listen and act if a matter is brought to your attention.  It’s often this which is over looked and leads to the formal claims and litigation following; the failure to take an issue seriously.  Such was the case in Heafield v Times Newspaper Ltd (2013) UKEAT, which went all the way to the Employment Appeal Tribunal.   Heafield’s boss used a swear word in the same sentence to the then Pope, Heafield took offense as a practicing Catholic and tried to raise it informally. It was only after he felt his complaint had not been appropriately dealt with he took it formally.  So by addressing things early these external claims can be prevented.  Now this particular case should provide some comfort as it was determined that the particular comment was not malicious or anti Catholic, and whilst the boss shouldn’t have sworn a ‘reasonable person would have understood that and made allowance for it’, drawing from the Equality Act 2010’s ‘catch-all’ provision which means a person’s reaction has to be reasonable.  It seems that tribunals will use common sense in determining what is considered as harassment or bullying and consider all the circumstances when a member of staff fails to be appropriate or is not politically correct. As this case clearly shows, context is key.
  • Which is my final recommendation, deal with any such concerns and grievances raised to you on a case by case basis, with full knowledge and appreciation of the facts, with a good deal of diplomacy, and total regard for all concerned.

We all know there’s a fine line between friendly, acceptable fun banter and the things that turn into unlawful harassment or discrimination.  Addressing this isn’t just being ‘politically correct’, or having to join the ‘bland wagon’ it’s more about appreciating the litigation risks or the impact on individuals and creating the right environment for your workplace where everyone feels included, and feels able to raise concerns and be supported.

So what do you feel is the best approach? @TrueHRLtd can provide guidance, and reassurance, on how to do this without fearing discrimination and harassment claims in this ever changing discriminatory legislative environment we call work.