English language requirement for public sector workers: draft Code of Practice

The government has produced a draft Code of Practice intended to ensure that every public sector worker, operating in a customer-facing role, can…

The government, in keeping with its manifesto, has produced a draft Code of Practice aimed at public authorities intended to ensure that every public sector worker, operating in a customer-facing role, can speak fluent English. This will be known as the ‘fluency duty’. In Wales, the requirement will be to speak fluent English or Welsh.

The draft Code, published by Cabinet Office Minister Ben Gummer this month, has been made under Part 7 of the Immigration Act 2016 which received Royal Assent on 12 May 2016.

Who is covered?

The Code is aimed at public authorities, to include: central government; non-departmental public bodies; councils and other local government bodies; NHS bodies; state funded schools; the police and the armed forces; and public corporations.

The Code applies to all public authorities in England and in relation to Scotland, Wales and Northern Ireland public authorities exercising functions relating to non-devolved matters.

The term worker is wide and refers to all public sector staff in a customer facing role, including: permanent and fixed term employees; apprentices; self-employed contractors; agency temps; police officers and service personnel.

However, the fluency duty does not encompass those workers who are employed directly by a private or voluntary sector provider of a public service, or whose work is carried out mainly outside of the UK.

What is a customer-facing role?

Defining what is a public facing role is slightly trickier, but the government suggests that public authorities refer to an individual’s job description and/or occupational goals to decide. What is necessary for a role to fall within this definition is the regular, planned and intrinsic requirement of the worker to interact with members of the public, whether face-to-face or over the telephone.

It is important to note that the fluency duty will not simply be confined to public sector employees responding directly to queries from the public. Less obvious roles will also be covered. For example, the Code states that a teaching assistant, required to communicate with pupils to support their learning, will be viewed as operating in a customer-facing role.

What is fluency?

The Code states that fluency relates to an individual’s ability to speak with confidence and accuracy, using accurate sentence structures and vocabulary, all without hesitation and appropriate to the situation at hand.

Language proficiency will be largely determined by the type of situations a worker will be faced with and must be carefully assessed with reference to the standard required for that particular role. For example, whether the communication is likely to include technical, profession-specific or specialist vocabulary is likely to be relevant.

Importantly, the draft Code does not require public authorities to ensure that their customer facing staff speaks only English or Welsh to communicate with members of the public. Public authorities are free to provide guidance to their customer facing staff to use, where appropriate, any other language skills they may have to engage with members of the public who speak other languages. The code also makes specific reference to sign-language requirements, where they apply.

What do we need to do?

You may need to review HR policies and practices to ensure that they reflect the fluency duty as well as comply with existing legislation. You will need to ensure there are references to it in some of your procedures, to demonstrate compliance with the code. It is also likely to be appropriate to refer to the new fluency requirement in job descriptions, person specifications, and contracts of employment for staff in certain roles.

You will also need to think about how fluency will be assessed in your organisation. In particular, how will you require candidates to demonstrate fluency during the recruitment/interview process? Will you ask candidates to take a test or adopt a less formal approach? Are managers involved in recruitment aware that they need to specifically assess and record evidence of language skills?

It is also important to consider how you will identify and support existing staff that fall short of the required standard. The draft Code does not anticipate that you will need to test all existing staff, but it is important that any assessment process is objective and fairly applied. A consistent approach might be to build some assessment of fluency into employee appraisals or to re-assess fluency if a customer complaint or comment is received.

The Code says that you must operate a complaints procedure so that if a member of the public wants to complain about the insufficient proficiency of a worker’s language, then it will be investigated and responded to. This isn’t explicitly required to be a separate stand-alone policy, so it may well be sensible to incorporate it into an existing complaints procedure. Alternatively you could have a stand-alone policy. However wherever it is introduced, the policy will need to identify the distinction between complaints based upon race alone and those based upon language proficiency, and it should highlight (based upon what the code says) that complaints about accent, dialect, manner or tone of communication will not be considered as legitimate (and that will be a tough distinction to draw in practice).

In terms of training, the government offers numerous resources that could assist with bringing workers up to speed with the English language. For example: listening to language podcasts; mobile language applications; providing an internal mentor or coach; and online resources.

Falling short of the standard

So what happens when a worker will not or cannot reach the fluency required of them? The Code suggests that adjustments to their role could be the answer. Could the frequency of communication with the general public be reduced? Could alternative work be offered on a temporary basis while the employee is supported to boost their skills?

The Code makes clear that dismissal should be a last resort, and should only occur if the member of staff has unreasonably refused to undertake training, has failed to make the improvements required within a reasonable amount of time, and/or if redeployment is not feasible due to a lack of alternative posts. The Code stresses that your existing disciplinary and capability procedures should still be followed. However the Code certainly raises the possibility of dismissing an employee if they do fall short (and cannot be redeployed to a non customer facing role). We would expect to see challenges to the fairness of any early dismissals based upon these requirements.

Discrimination risk?

The draft code undoubtedly raises a risk of discrimination

Requiring you to enforce strict standards could cause your organisation to risk allegations that you have treated staff or candidates differently on the grounds of their race or nationality giving rise to claims of discrimination. It remains to be seen the extent to which this Code alone supports a justification defence to an indirect race discrimination claim, but for each occasion when the requirements are applied you will need to think through what you are trying to achieve and (importantly) whether the action you are taking on each occasion is proportionate.

The draft Code stresses that the processes and methods used to determine whether an individual has good command of English must be fair and transparent and objectively applied. However, this may be tricky to achieve in practice.

The Code of practice is due to come into force in October 2016, so there is not much time to get ready.

We are happy to help you review your policies and procedures and advise on any potential discrimination risk.

Harriet Edwards is a member of the Weightmans Knowledge Management Team and is based in Liverpool. Phil Allen is a Partner in the Employment, Pensions and Immigration Team and is based in Manchester.

If you have any questions or require any support, please get in touch with Phil Allen (phil.allen@weightmans.com) or speak to your usual Weightmans contact.

Read the draft Code of Practice and impact assessment.

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