Introduction

Part 7 of the Immigration Act 2016 will introduce legislation reflecting the Government’s belief that the public should expect that all those with whom they interact, within the sphere of public services, have the language abilities required to respond to their needs.

The Act does this by putting an obligation on public authorities, firstly, to ensure that each person who works for the public authority in a customer-facing role speaks fluent English and, secondly, that the public authority must operate an adequate procedure for enabling complaints to be made and for the consideration of such complaints.

Whilst Part 7 of the Act has not yet been brought into force, the Government has now issued a statutory Code of Practice, stating that the Government intends to bring the provisions into force in autumn 2016 and that the Code will be laid before Parliament and issued in October 2016.

The Code of Practice is a statutory code, which means that public authorities must have regard to the Code when fulfilling their statutory duty under Part 7 of the Act.

The Code contains guidance on who the legislation applies to; setting a standard of language fluency; taking action where members of staff in customer-facing roles are found not to demonstrate the necessary standard of fluency, and the complaints procedure that should be adopted.

The Code applies to all public authorities in England. As far as Scotland, Wales and Northern Ireland are concerned the Act limits the application in these countries to non-devolved functions. Given that education is a devolved matter in these three countries that means that the provisions do not apply to institutions in those countries, subject to any decision by the respective governments to apply the provisions to devolved functions.

Does the legislation apply to education institutions?

Unfortunately, there is no straightforward answer to this question. Section 78 of the Act defines a public authority as “a person with functions of a public nature”. This reflects the definition that was contained within the original Bill. In the consultation report issued by the Cabinet Office in February 2016, following consultation on the previous version of the statutory Code of Practice, it stated that respondents during the consultation had sought further clarity on the scope and definitions within the Code, including what amounted to a “public authority”. The consultation report went on to state that several responses invited the Code to provide a list of public authorities to whom the duty would apply. The Government’s response to this was that it considered a list of bodies would be unnecessary and the Code would address the need for further clarity by providing additional guidance to aid organisations to consider a number of factors to help them determine if they were providing “functions of a public nature”.

In section 1 of the recently issued Code it states that it applies to all public authorities which carry out functions of a public nature which includes central government departments, 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 only reference therefore to the education sector is that of state-funded schools.

The Code goes on to state that if bodies are uncertain as to whether they carry out functions of a public nature, four factors should be considered as follows:

Undertaking the responsibilities of central or local government – the extent to which the organisation has assumed responsibility for the function in question;

Public perception – the nature and extent of the public perception as to whether the function in question is public rather than private;

Exercising statutory powers – the nature and extent of any statutory power or duty in relation to the function in question, or whether the function involves or may involve the use of statutory powers;

Publicly funded – the extent to which the state makes payment for the function in question.

None of these factors are given preferential status and therefore it would appear that the decision is made by considering all of the four factors in the round. This could suggest that the answer may be different depending on the type of institution concerned. Therefore whilst it would appear that academies will fall within the scope of the legislation, the position may not be quite so clear in relation to further education or sixth form colleges. The fact that they no longer fall within the ONS definition of public sector bodies could be relevant, but applying the four factors, there would certainly be an argument (particular around the public funding element) that such institutions could be deemed to be carrying out functions of a public nature, especially in relation to the direct provision of education to its students .

For universities the position is even more unclear as it could be argued that, looking at the four factors in the round, it is perhaps more likely that they would fall outside the definition. Unfortunately, that cannot be said with any certainty and unless and until there is a decision on this point there would appear to be a degree of risk that universities are covered. It would seem likely that any private higher or further education providers would be outside the scope of the legislation.

What is the language requirement?

The requirement applies to persons who work in a customer-facing role, which is defined as a person who as a regular and intrinsic part of their role is required to speak to members of the public in English. The duty applies to existing staff as well as to new recruits. It should be noted that within Part 7 references to English are deemed to be read as references to English or Welsh where the public authority exercises functions in Wales. The Act says a person works for a public authority if they work under a contract of employment; under a contract of apprenticeship; under a contract to do work personally or as an agency worker.

Under the Act a person is deemed to speak fluent English if they have a command of spoken English which is sufficient to enable the effective performance of their role. The Code states that employers must, in satisfying themselves that an individual has the necessary level of fluency, carefully consider the nature and extent of the spoken communication which is necessary in the role. The guidance states that the Common European Framework of Reference for Languages (CEFR) provides a useful descriptor of fluency levels and a summary of this is contained within the Code. It goes on to state that public authorities can, but are not required to, specify a minimum spoken English or Welsh qualification if they determine this is appropriate for a customer-facing role and, if so, such a level must not be below CEFR level B1.

The Code goes on to state that each public sector organisation will need to review its HR policies and practices to ensure they reflect the fluency duty as well as complying with existing legislation, and it sets out steps which the public authority should consider taking, including making all customer-facing members of staff aware of the new duty and explaining the possible actions that may be taken if their proficiency in spoken English or Welsh is found to be insufficient.

Complaints procedure

The Code states that a public authority must operate a complaints procedure so that if a member of the public feels that a customer-facing public authority worker has insufficient proficiency in spoken English or Welsh for the performance of their role, they can make a formal complaint which is then investigated and a response provided. The Code also says that public authorities can use existing channels where appropriate; should adequately publicise and signpost the complaints procedure; ensure that all legitimate complaints are treated seriously; ensure complaints are progressed and complainants receive a response efficiently and in a timely manner and ensure that the complainant or their representative is made aware of any escalation route, for example to an ombudsman service.

The Code goes on to state that if the complaint is upheld the public authority must consider what steps can be taken to meet the fluency duty, which would include providing training or retraining; redeploying the member of staff involved or, as a last resort, considering dismissing the individual on the basis they are not capable of fulfilling their duties.

Conclusion

It is obviously unsatisfactory that it is unclear whether the English language requirements apply to publicly funded institutions in the further and higher sector. Arguably however the additional impact of the provisions may be limited even if they are deemed to apply. The most likely cause of complaint relating to language skills will probably come from students who would almost inevitably have the ability to raise this complaint under the institution’s existing student complaints procedure. Many institutions will also have complaints procedures relating to concerns raised by members of the public, although if an institution does not have such procedures it will need to consider whether it would be appropriate to introduce it.

If the duty does apply, however, then the institution will need to consider whether there is an obligation on institutions to ensure that each person working for them in a customer-facing role speaks fluent English – or whether that duty is confined to specific roles. Any consideration of that point is likely to involve a careful review of how the criteria set out in the Code sit with the realities of different roles carried out by members of staff within the institution.

If the duty does apply to an institution then there is a risk (which is acknowledged in the Code) that any decision taken in breach of the duty could be the subject of a judicial review challenge.

Challenges of that sort can be expensive. Exactly what the wider implications of might be would depend on the detailed circumstances of the particular case. In principle however if a court were to decide that the institution had failed to comply with the duty, then, logically, one option open to it would be to grant an order that the member of staff concerned did not carry out their customer-facing role until their fluency skills had improved to the appropriate standard.

Whatever else, any decision challenged on the basis of a breach of this new duty is likely to involve very close scrutiny of the extent of the duty in the particular circumstances of the challenge, the conduct of the institution under challenge and its approach to the new duty. Further and higher education institutions may therefore wish to consider whether, without conceding that the provisions apply to them, they should review the fluency level of their staff in customer-facing roles to assess whether there are likely to be any areas of concern and, if so, how to deal with them.