Q A group of my most productive employees has developed a reputation for using abusive language. I have recently received complaints from other employees about this. I have previously warned the group in question to ‘tone it down’ but they persist in swearing. I don’t want to lose them, but I also don’t want colleagues upset. What should I do?
Some degree of banter in the workplace is probably inevitable. However, if this banter crosses the line into something more damaging, robust action is required to address the situation. Clearly, the persistent use of swearing and abusive language which upsets others is unacceptable.
Under the Equality Act 2010, employees can bring claims of discrimination where they believe they have been subjected to unwanted conduct related to certain protected characteristics, including gender, race and sexual orientation. Abusive language is a factor which is regularly cited in harassment claims, even if it has not been directed at a particular individual, but results in an intimidating and hostile working environment.
Successful claims of discrimination carry potentially uncapped financial liability for employers. Even if abusive language is not related to any particular protected characteristic, employers can still find themselves at risk of bullying complaints and constructive unfair dismissal claims if they fail to take adequate steps to tackle the issue.
While it is important to have robust equal opportunities and anti-bullying/harassment policies in place, it is also essential that such policies are clearly communicated to employees and actively enforced.
With this in mind, you should ensure that you:
- Properly train employees to understand their rights and responsibilities under your company’s policies and procedures, and clarify the types of behaviour which are unacceptable ie., confirm that swearing and abusive language are not acceptable and will no longer be tolerated.
- Ensure that employees are under no illusion that unacceptable conduct, in breach of company policy, will result in disciplinary action.
- Act consistently. When necessary, impose disciplinary sanctions including, if appropriate, dismissal.
Q I have just discovered that one of my shopfloor employees has epilepsy. He works on machinery and I am concerned that he could have a fit while doing so and injure himself and/or others. What are my options?
You should not jump to the conclusion that somebody who has epilepsy automatically presents a health and safety risk to themselves and/or others. Deal with the situation on the basis of this particular individual’s condition, circumstances and role. This will require you to undertake a proper health and safety risk assessment, obtain specialist medical and/or occupational health advice and consult directly with the employee.
As you operate potentially hazardous machinery on your premises, you should already ensure that all your employees are suitably protected, with adequate safety guards in place. It may be that this employee operating machinery doesn’t actually represent any more of a health and safety risk than any other. However, if following a proper workplace assessment, and on receipt of medical/OHP advice, you conclude that the employee’s condition does present a genuine identifiable risk, you should take action.
However, before removing him from his current role, you are under a legal duty to make such ‘reasonable adjustments’ as are necessary to remove/satisfactorily manage this risk. Epilepsy is a disability for the purposes of the Equality Act 2010 and a failure to make such reasonable adjustments will amount to discrimination. Potential adjustments might include making changes to working patterns/schedules so as to ensure that the employee does not work alone on hazardous machinery.
Only if you are able to establish that there are no adjustments that could reasonably be made to effectively manage the identified risks of this employee continuing to perform his current role, should you consider whether there are any alternative roles available that he could undertake which wouldn’t carry such risks. If there are no such roles, then, and only then, would you be able to potentially lawfully justifying dismissing him.
60 second guide
...to shared parental leave
The shared parental leave regime (SPL) was introduced to give parents greater flexibility when deciding how to provide child-care in the first year post birth/adoption by allowing parents to share a ‘pot’ of leave and pay within the first 52 weeks post birth/adoption. The option to take paid SPL is available to eligible parents of babies born or children placed for adoption after 5 April 2015.
Unlike statutory maternity leave, SPL can be taken in discontinuous periods (of minimum blocks of one week), with parents returning to work in between. If both parents are eligible to take SPL they will be able to elect to take leave in turns and/or at the same time.
SPL is only available to employees. Eligibility depends on a number of criteria, including, but not limited to, length of service. A mother or adopter must be entitled to statutory maternity or adoption entitlements, have elected to ‘curtail’ these entitlements, and must share the main responsibility for caring for a child with a partner.
In addition, the other parent must also be ‘economically active’ satisfying a separate employment and earnings test (which can be via employment or self-employment).
The maximum amount of SPL available to parents to take between them is 52 weeks and up to 39 weeks statutory shared parental pay (which is currently paid at £139.58 or 90% of average weekly earnings, if lower).
Employees are required to provide their employer with written notification for each period of SPL they intend to take. Although employers cannot refuse a notice for a single continuous block of leave, they can refuse requests for discontinuous periods of leave made in the same notice. If this is the case, the employee will be entitled to take the entire amount of leave requested in one block, or withdraw the discontinuous leave request.
Both parents may take 20 ‘SPLIT’ days (shared parental leave keeping in touch days) during SPL. These work in a similar way to maternity leave ‘KIT’ days.
The government has recently announced plans to extend SPL and pay to working grandparents with the aim of further increasing flexibility and choice in parental leave arrangements.
