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Addressing inappropriate comments in the workplace

Published 30 August 2023

Intentionally or unintentionally saying the wrong thing at work can prove disastrous for an employee’s career.

It was the former US president George W Bush who said ‘sometimes words have consequences you don’t intend them to mean’[1 cited 30.8.23]

There can be many reasons why an employee may say something in a working environment, which gives cause for genuine concern and has serious ramifications  .

It can happen if a worker is poor at expressing themselves in a style that is clear and tactful, they are projecting their own insecurities or frustrations onto others, or they are simply unaware of the cultural or personal sensitivities of someone they are talking to.

There are circumstances in where what is said by an employee can lead to them being dismissed, and that decision being fair.

And it can happen, irrespective of it what was said was meant to be insulting or hurtful.

The often used explanation of ‘no offence meant’, ‘it was just banter’, or ‘it is a generation thing’, will not always excuse or fully mitigate any harm caused by something that is said.

Nor does the claim I am entitled to my opinion and what about my right to free speech? Free speech is not an absolute right, it comes with limitations to ensure that it is not exercised in a way which causes harm to others[2 cited 30.8.23]

Although we all have freedom of expression, we also have a duty to behave responsibly and to respect other people’s rights in anything that we say at work.

In the last week we have seen reports of two different cases in which inappropriate and unacceptable workplace comments were considered to be part of a pattern of unlawful behaviour

A former Swiss Re underwriter whose senior manager made lewd comments about her body and speculated on her sex life was awarded £1.3m by an employment tribunal[3 cited 30.8.23]

The payout is said to rank among the largest for sexual discrimination at a City

And a male nurse in the NHS is reported to have won a sex discrimination case after being told to ‘man up’ by a female colleague in front of a room full of women.[4 cited 30.8.2]

The worker, who had more than 20 years’ service, said he had grown tired of being the ‘butt of jokes’ about being the only man in the team.


The type of verbal comments that can lead to dismissal

Anything said that can be considered to amount to gross misconduct or harassment can lead to a fair dismissal.

Gross misconduct is when an employee does something that is extremely serious or has very serious consequences.

Harassment is when an employee behaves in a way that violates another person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them[5 cited 30.8.23]

When unwanted behaviour and comments are based on a person’s protected characteristic, such as age, sex, race, disability, religion or sexual orientation it can amount to harassment.

Some examples of the type of verbal comments, which could lead to dismissal are those that are racist, sexist, homophobic, discriminatory in some other way, jokes about a colleague or a customer, threatening, bullying or insulting a colleague or a customer.

Although it is worth pointing out that every comment which can be considered inappropriate or offensive, will not always necessarily be worthy of dismissal.

Each case has to be judged on its merits, and an employer must follow a fair process and consider the particular circumstances of each incident.

It should always include careful consideration of the nature and severity of the comment, the impact on the victim and the workplace, the employee’s previous record and any mitigating factors.


A comment not intended to cause offence, but it did

The ‘I didn’t mean it that way’ defence for something that is said inadvertently but has caused offence, is not one that will always be accepted.

Intent is just one factor that an employer must consider. While what was actually meant should play a role in determining the severity of any disciplinary action taken, it may not always excuse the consequences, especially if a comment has caused harm or breached a particular work policy.

If what is said by any employee has a negative impact on someone else, creates a hostile environment or breaches the rights of an individual, taking disciplinary action in response can be appropriate.

Employers should take a zero-tolerance approach to all types of bullying and discrimination.

Businesses will have different policies in place to deal with such matters. If any work-related comment is found to breach such a policy, then it can lead to disciplinary action.

In addition, anything that is said that can be taken to undermine professionalism or harm the reputation of an employer can also have consequences.

But where a comment was genuinely not meant to cause offence, it can provide mitigation.

In such cases a show of real remorse for any upset caused, a willingness to learn from the situation and any enthusiasm to rectify the situation can mean the severity of the consequences may be reduced.

Employers must balance the intent behind comments with the potential harm caused and the broader impact on the workplace.

If you are unfortunate enough to find yourself in such a situation, it is important to address the issue professionally, apologise if necessary, and cooperate with any investigations or disciplinary procedures that follow.


Deciding if what is said is offensive

The difficult challenge is always to find the right balance. Especially when an employee who has made a comment categorically denies any intentional wrongdoing, but the person it was directed at feels aggrieved.

The content of any questionable comment, the context in which it was made, the impact it had on others, and relevant cultural and workplace norms will all need to be considered.

The words used should be properly assessed to determine if they include slurs, derogatory terms, inappropriate language or target an individual's personal characteristics e.g. race, gender, religion or sexual orientation.

Other important factors to be considered should include if what was said was in a private conversation or in a public or professional setting, is it acceptable between friends but not appropriate in a work setting, and whether the person making the comment had any malicious intent or was it meant to be humorous.

Reasonably establishing if a comment is offensive can sometimes be subjective, and opinions may vary. Each situation should be approached with sensitivity and an open mind.


What can I realistically do to ensure anything I say at work does not cause offence?

The phrase ‘you can’t say anything these days’ is often used to suggest an overreaction to something that many will consider offensive.

It is important to be respectful and considerate of colleagues and avoid saying anything that might cause them offence. Some tips that might help:

Be aware of your own biases and assumptions. Sometimes we may say things that are offensive without realising it, because we are influenced by our own stereotypes, prejudices, or cultural norms.

Think before you speak. Before you say something consider if it is appropriate, relevant, respectful and the impact it could have.

Listen actively and thoughtfully. Pay attention to what any colleague is saying and how they are saying it. If you sense they are uncomfortable or offended by something you said, apologise and ask for feedback.

Learn from your mistakes. If you realise that you have said something offensive to a workmate, do not try to justify or minimise it. Acknowledge it, take responsibility, express your sincere regret, learn from it and avoid repeating the same mistake in the future.

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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