Q:One of my employees often uses offensive language, sometimes in front of clients. When is disciplinary action justified?
A:Employers striving to achieve a positive and productive working environment should actively discourage the use of offensive language. It can cause serious divisions in the teams, and may also result in reputational damage when clients become exposed to the offensive language.
To know when to take action it is important to define what is meant by offensive language. To do this, a workplace policy on misconduct or appropriate behaviour can be used. The policy will outline what is considered as unacceptable language, making particular reference to remarks about religion, sexuality, race, age, gender and disability.
The policy should also remind employees that banter will not be considered as a reasonable excuse for offensive language.
Employees have a duty to treat each other and third parties with respect at all times. If an employee is suspected of using offensive language, prohibited under the workplace policy, a disciplinary process can be carried out under the company’s policy.
A full investigation should be carried out initially and in accordance with the conciliation service Acas’s code of practice on disciplinary and grievance procedures.
The Acas code advises firms to hold meetings with witnesses to get their account of events and accusations, and hold a meeting with the accused employee to get their account of events and collate other relevant documents that may be used as evidence. The investigation must be carried out without any unreasonable delay, as delays could lead to a lack of clarity in witness statements. The individual leading the investigation should also not be connected in any way to the allegations.
Depending on the severity of the accusations, it may be advisable to temporarily suspend the accused employee at the outset. The investigation results should provide sufficient evidence to hold a disciplinary hearing, where the employee responds to the evidence put before them. Where the employee is found to have carried out the misconduct, formal disciplinary sanctions can be imposed.
The level of sanction needs to be reasonable and should apply in accordance with the internal disciplinary policy. The employee must be informed of the outcome in writing and they should be afforded the right to appeal the disciplinary decision.
Peter Done is managing director of law firm Peninsula
