Tribunal declares that swearing is “particularly common in the North”

There are countless pressing questions that the UK has yet to answer, such as, is the correct order for scones; cream and then jam or jam and then cream? What is the correct pronunciation of “scone”? Is your last meal of the day, “dinner”, “supper” or “tea”? Why are people in the South of England so averse to making eye contact with strangers on public transport and finally, do people in the North swear more?

This last question was asked and answered by the Employment Tribunal in recent case Ogden v Booker Ltd, which involved a heated dispute over donuts.

Ogden v Booker Ltd

Mr Ogden worked as a driver and trainer at the wholesale retailer, Brooker Ltd in Greater Manchester. He and other colleagues were in the office participating in a discussion about donuts, weight loss and attending a weight loss club. During the course of the discussion Mr Ogden turned to one of his colleagues and 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.”

The female employee said that this comment made her feel humiliated and anxious and she later called her manager in tears. It was the “straw that broke the camel’s back” in the context of a problematic workplace culture. She took a period of leave ahead of a preplanned holiday and then raised a formal grievance. Mr Ogden communicated to their manager that he was “mortified” about the incident and that he was sorry that it had escalated to the point that it had. Following a brief investigation, Mr Ogden was dismissed for gross misconduct due to his “verbally aggressive behaviour.” Mr Odgen brought a claim for unfair dismissal.

What is a “f***ing m**g”?

The word “m**g” is a highly offensive term for a person with Down’s syndrome, however, Mr Ogden argued that it is a common Northern term meaning ‘stupid’. When deciding how the word was used the tribunal looked at the Oxford English Dictionary that stated the word was a “colloquial” but an “offensive” term to describe a person with Down’s syndrome but it could also mean someone “considered to be stupid or foolish”. The tribunal thought that the word was not on par with other offensive terms such as racist words “N-word” or “P-word” or homophobic terminology, as that these terms would never be described as “colloquial”. The tribunal accepted Mr Odgen’s evidence that he had used this word to mean ‘stupid’ and not in relation to Down’s syndrome (a disability under the Equality Act 2010 and a protected characteristic).

The tribunal held that while the use of swear words in the workplace was not acceptable, is it a common everyday experience, particularly in the North where the F-word is used “quite often”. The culture of the workplace was one where swearing was considered an “acceptable workplace norm”.

The workplace culture

The claimant explained to the tribunal that the culture in the workplace was “lawless.” He gave many bizarre, food related examples of incidents in the office where the female employee had been subjected to similar, if not worse treatment. This included a shift manager pouring sweets over her head, leaving an image of a fat child eating a cheeseburger on her desk, employees referring to her as “chubs” and managers referring to certain meetings as “fat club”.

The outcome

The “toxic, dysfunctional office” culture was allowed to thrive because managers failed to enforce standards and were often complicit. The Disciplinary Standards Policy in place at Brookers Ltd stated that managers were responsible for specifying standards of behaviour and enforcing rules, however, the managers at Brookers Ltd were ‘part of the problem’ and there was a lack of consistency in enforcement of expected standards. The culture was not taken into account when deciding the disciplinary action that should be taken and instead, when the claimant raised this issue, it was used against him as an example of him not taking responsibility for his actions. The claimant may have crossed a line, however, having never been informed that his prior conduct was causing offence, and taking his lead from managers, the decision to dismiss the claimant was too “harsh”.

The tribunal described the office as a “free for all” and when Brookers Ltd tried to clean up the culture “the claimant was the one who was without a chair when the music stopped”. There was a real sense of the claimant being made an example of and a reasonable employer would have first taken steps to address the workplace culture. The claimant had been unfairly dismissed.

We recently wrote a blog on case Finn v British Bung Manufacturing, where an employee won a case of harassment related to sex after being called a “bald c***” and it was found to amount to harassment related to sex as men are more likely to experience baldness than women. (Please see the blog here). In that case the tribunal also commented that industrial language was commonplace and this can make it difficult for employees to assess the boundaries of acceptable behaviour. This case took place on a factory floor in Yorkshire, perhaps also supporting the tribunal’s theory that people in the North of England swear more commonly in the workplace?

The question of workplace culture requires commitment and consistency and must be monitored and enforced by managers to be effective. Training on policies that promote inclusivity and open communication is essential to enable managers to spot and deal with bullying and harassment. If there has been a poor culture in the workplace, management should undertake a ‘reset’ and training which is communicated clearly to all staff, rather than deciding to use one employee as an ‘example’ of the change in attitude by management.

The tribunal may have decided that swearing is more common in the North of England, however, it is our understanding that the correct approach is cream and then jam on a scone. We will await case law to establish this definitively.

Should you have any queries in relation to improving workplace culture and would like practical advice as to what steps can be taken, please contact Charlotte Gittins or any other member of the Edwin Coe Employment Team.

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