In Bermuda, an employee is legally entitled to terminate his contract of employment without notice where the employer's conduct has made it unreasonable to expect the employee to continue the employment relationship.

This is known as constructive dismissal, which is provided for in the Employment Act 2000. Constructive dismissal has long been recognised in Bermuda case law, not least by a 1986 decision of the Court of Appeal.

A landmark English Court of Appeal decision in 1978 determined that there was an implied duty upon an employer to behave reasonably towards his employees.

The Court held that an employer should not, without reasonable and proper cause, conduct himself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

Today, Courts and Employment Tribunals take the view that any form of unreasonable conduct will constitute a breach of the implied terms of the employment contract, which are those terms that are not expressly written in the contract of employment.

In reaching a decision the Court and Tribunal will adopt an objective test to determine whether the conduct of the employer is such as to repudiate the contract and give the employee the ability to terminate his employment and claim constructive dismissal.

One example concerns employers, supervisors, managers and others who use foul and abusive language in the work place, which undermine the contract of employment.

Such was the case of a barman in England who arrived at work in 1978 at what he believed was the right time, only to be told by his employer that he was late. When the employee attempted to explain that he believed it was the right time, the employer started to insult him in an offensive, descriptive and demeaning manner.

The employee asked his employer not to talk to him in that way. The employer replied that he could talk to his employee in any way that he wished. If he didn't like it, he could, ahem, go forth and multiply. Not only was the employee escorted from the building, he was subject to a stream of abuse and swearing as he did so.

An Employment Tribunal and later an Employment Appeal Tribunal found in the employee's favour, deciding that the conduct of the employer was so intolerable that the employee could not be reasonably expected to have remained in his employment and found that he was therefore constructively dismissed.

Since then, there have been many cases where the Court or the Tribunal have decided that individual swear words, phrases and abusive language amount to conduct allowing the employee to claim constructive dismissal in the event of a termination.

There is no law that prohibits the use of foul language in the work place. However, the case law should be a wake up call to employers to smarten their vocabulary. With precedent against him, an employer will face an uphill struggle in attempting to defend a claim for constructive dismissal for such language.

Some employers have defended their poor behaviour by claiming that swearing is usual in the particular industrial/commercial environment or by asserting that the employee's high salary entitles the employer to act in such a way in a high pressure, busy environment.

For example, a managing director employed under a fixed term contract left his job before the contract came to an end. He claimed constructive dismissal, alleging that he had for over six months and often on a daily basis been the victim of a vicious and premeditated campaign of bullying, harassment and intimidation by the president of the company.

The employee claimed damages for loss of salary for the balance of his fixed term contract and bonuses well in excess of $2.7 million.

The employer defended the action on the basis that the employee had been under performing and would have been dismissed in any event by reasons of misconduct and poor performance.

The Court awarded the former managing director $1.5 million in compensation, lost bonuses and lost remuneration.

Clearly, if employers are using abusive words and phrases in the work place, chances are there is a constructive dismissal case just waiting to be brought.

Attorney Kelvin Hastings-Smith is Manager of the Litigation Department at Appleby Spurling & Kempe. Copies of Mr. Hastings-Smith's columns can be obtained on the Appleby Spurling & Kempe web site at www.ask.bm.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.