In August the Government announced plans for new laws to ensure all public sector workers in public-facing roles speak fluent English (or, in Welsh authorities, English or Welsh). Further details of the proposals have now been revealed in the Immigration Bill, which was published on 17 September, and in a draft Code of Practice, published for consultation on 13 October.
It will take some time for the Bill to make its way through Parliament, so the new rules will not take effect until next year. At present, an October 2016 start date seems most likely.
Who will be affected?
If the Bill is passed, the new regime will apply to public authorities across England and Wales, and to some in Scotland.
Public authorities will need to ensure that staff in customer-facing roles can speak English (or Welsh, where appropriate) well enough to do their jobs effectively. The new rule will apply to all workers who are required to speak to members of the public in English/Welsh as a regular and intrinsic part of their job, including agency workers.
Private sector providers of a public service, or any services which have been outsourced, will, initially at least, fall outside the scope of the new legislation. That could change, however, in years to come.
What standard of English/Welsh will be required?
The Bill says that affected workers can speak English/Welsh well enough to do their jobs effectively. The draft Code makes it clear that what this means in practice depends on the nature of the role and will be for the authority to assess, taking into account, for example:
- the frequency of spoken interaction
- the topic of spoken interaction
- whether the communication is likely to include technical or specialist vocabulary
- the typical duration of spoken interaction
- whether the communication is supplemented by written material
- any existing language standards that the worker is required to satisfy, such as those that apply to medical professionals.
According to the draft Code of Practice, the new requirements are about “fluency” rather than any other aspect of communication. The Code says that “fluency” means:
“a person’s language proficiency and their ability to speak with confidence and accuracy, using accurate sentence structures and vocabulary. In the context of a customer-facing role, a person should be able to choose the right kind of vocabulary for the situation at hand without a great deal of hesitation. They can listen to their customer and understand their needs. They can tailor their approach to each conversation appropriate to their customer, responding clearly with fine shades of meaning, even in complex situations. ..Fluency does not relate to accents, regional or international, dialects, speech impediments or the tone of conversations.”
How will language proficiency be assessed?
The Bill does not say how fluency is to be assessed, other than requiring authorities to have regard to the Code of Practice.
The draft Code notes that authorities should be prepared to accept a range of evidence of language ability, such as:
- competently answering interview questions in English or Welsh
- possessing a relevant qualification at level 2 or above, taught in English or Welsh by a recognised institution abroad or attained as part of education in the UK; or
- passing an English or Welsh spoken language competency test.
Assessing the language competency of agency workers will be less straightforward in many cases as they are less likely to have gone through any form of interview process with the authority. The draft Code suggests that authorities should make sure their contractual arrangements with the supplier, and any instructions to them, spell out any language requirements so there is less chance of problems arising.
Whatever approach to assessing fluency is taken, employers will have to make sure they do not fall foul of anti-discrimination law. They could run into difficulties if they apply different standards dependant on nationality or ethnic or national origins, for example, or if the standard of fluency expected is set too high. Some authorities will also have other legal obligations that they must still comply with, such as under the Welsh Language Measure, the Welsh Language Act 1993 and the Medical Act 1983.
On the surface, an obligation to ensure staff can speak English or Welsh well enough to do their jobs effectively may appear fairly straightforward. The Bill, however, has a sting in its tail. For it is not enough for managers to satisfy themselves that workers are fluent: authorities will also have to operate a complaints procedure so that members of the public can raise concerns if they think an individual’s language skills are not up to scratch.
It is not difficult to imagine the challenges that authorities could face in dealing with complaints. To some extent these are acknowledged in the draft Code, which distinguishes between “legitimate” and “illegitimate” complaints under the fluency duty:
Click here to view table.
The Code also says that authorities are not obliged to respond to complaints that are “vexatious, oppressive, threatening or abusive”, which it says would include complaints that are without foundation or which are intended to result in harsh or wrongful treatment of the person referred to in the complaint. According to the draft Code, these types of complaint “should not be allowed to continue.”
Dealing with poor fluency
The draft Code says that if an employee in a customer-facing role is not sufficiently fluent, the authority should offer appropriate support. This might involve giving the staff member a reasonable period of time to improve their language skills, and even, possibly, providing training. Redeployment might have to be considered in appropriate cases. If all else fails, dismissal will be the ultimate sanction.
It is easy to envisage the potential for Tribunal claims from workers who feel they have been unfairly treated, whether in the form of complaints of unfair dismissal or of direct or indirect discrimination. Employers should, therefore, bear in mind that they could, one day, have to explain and justify to an Employment Tribunal their fluency standards and how they have been applied.