Comment made in ruling on employment dispute
Swearing in the workplace is increasingly common, ‘particularly in the North,’ an employment judge has said as part of a ruling.
The comment was made in a written judgment handed down by employment judge Shergill concerning a case for unfair dismissal.
Robert Ogden brought the action after being sacked from his job as a result of a complaint from a fellow employee. This complaint alleged that he had called a female colleague a “f***ing m**g” during an argument over doughnuts and weight-loss classes.
He accepted during the case that he had said: “Becky you can’t do that, are you a f***ing m**g? No wonder it takes you 19 weeks to lose a stone, it hasn’t taken me 19 weeks.”
Ogden denied that “m**g” was a reference to people with Downs Syndrome, however, and said instead that it was a common Northern term referring to stupid. This was accepted by the judge who found that he had used the word as “a vague term of abuse”, rather than one relating to a protected characteristic.
Ogden’s words, the unnamed female colleague said, left her feeling “humiliated”, “violated and shocked”.
Whilst the judge found that “swearing should not be acceptable in a workplace”, he added to this that “although common everyday experience, particularly in the North is that the F word is used quite often spoken in the public sphere”.
“On the face of it,” he continued, “use of an offensive term is likely to be a prima facie breach of workplace discipline in most workplaces.”
However, in this particular workplace, described as “toxic”, “lawless”, prone to stampedes of “mutual horseplay”, and a haven for a “significant amount of ‘banter’”, Ogden’s dismissal was nonetheless unfair.
“I am satisfied there was a ‘toxic culture’ in the office, it was ‘lawless’ with no real enforcement of expected workplace norms by managers. Indeed, managers were part of the problem by most accounts,” he said.
“I am satisfied this was a dysfunctional and seemingly toxic office,” he continued, “with many participants in this unprofessional behaviour including the claimant and victim in my assessment.”
“The claimant had not been pulled up before over comments, and this likely led to a false sense of security in terms of it not being a disciplinary issue,” he added.
The judge went on to highlight significant failings in the training provided to employees, setting and consistency of disciplinary standards, and investigation and enforcement processes.
The case will now proceed to an assessment of quantum.
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