From 21 November 2016, public authorities will be subject to a new ‘fluency duty’. This means they will be required to ensure that customer facing staff speak fluent English (or in Wales, Welsh).
Which employers are subject to the duty?
The duty applies to all bodies which carry out functions of a public nature. This includes the NHS, councils and other local government bodies, central government departments, non-departmental public bodies, state schools, the police, armed forces and public corporations.
The duty does not apply to the voluntary sector, or to private service providers of public services, although it may be extended to them at a later date.
Which categories of worker are affected?
The duty applies in respect of employees and also agency temps, self-employed contractors, apprentices and police officers. Existing employees are covered, as well as new recruits.
What is a ‘customer facing role’?
Customer facing roles are those where speaking to the public is a planned, regular and intrinsic part of the role. This contact could be in person, or by telephone. The government’s Code of Practice contains a checklist which employers should use to assess each role.
- Is there a business need for interaction with the public?
- What is the frequency and form of this interaction?
- What is the level of service quality and responsiveness expected by the public?
- What is the proportion of the role which would require spoken interaction with members of the public?
- What is the nature of the role?
- Is English or Welsh language the primary language required for the role?
It also gives some examples: a teaching assistant and a customer services operative are considered to be customer facing, whilst a street cleaner and clerical officer are not.
What does ‘fluent’ mean?
For these purposes, ‘fluent’ simply means that the member of staff has a command of spoken English (or Welsh) which is sufficient to enable the effective performance of their role. The Code of Practice contains a list of factors to be considered when determining the standard required for each job.
- The frequency of spoken interaction.
- The topic of spoken interaction.
- Whether the communication is likely to include technical, profession-specific or specialist vocabulary.
- The typical duration of spoken interaction.
- Whether the communication is repeated in or supplemented by, written material provided to customers.
- The significance of the spoken interaction for service delivery.
The Code of Practice notes that "fluency does not relate to regional or international accents, dialects, speech impediments or the tone of conversations."
Customer facing workers who rely on sign language can still meet the fluency duty where required, through provision of an interpreter who speaks English or Welsh to the necessary standard.
Where the role is already subject to a separate language standard, for example teachers and doctors, that standard will continue to apply.
How should fluency be checked?
Public authorities must satisfy themselves that customer facing staff speak fluent English. This could be through a formal test, or the individual may demonstrate fluency through conversation during the interview process, or existing employees may have already proven themselves in the job.
Where relevant, public authorities can specify a minimum level of English, which must be at least CEFR Level B1. The Code of Practice contains further information about testing and the different levels.
What changes should be made to HR policies and practices?
Existing staff need to be made aware of the new requirement and advised on what might happen if they do not meet it (see further below). Contracts of employment may need to be amended to refer to the required standard as a condition of the job.
Recruitment practices will need to be adapted for the new duty. Job adverts should clearly state the standard of English (or Welsh) required for the role and recruiting managers must objectively measure candidates against that standard. It is important to ensure consistency across similar roles. It is also vital to ensure all applicants are treated in the same way, to avoid any breach of the Equality Act.
Public authorities should review their service level agreements with agencies, to ensure they are aware of the standard of English (or Welsh) required by the public authority for particular roles and that they only supply suitable workers for these positions.
Agreements with self-employed contractors should also be reviewed.
How should public authorities deal with existing workers who don't meet the requirement?
Public authorities should provide training to employees who are struggling to meet the requirement. Employees should be allowed to undergo training during their normal working hours, at the employer’s cost. This could be via formal language classes, online resources, or one-to-one conversation with a native speaker, ideally someone who understands the context of the role.
If sufficient improvement is not demonstrated within a reasonable time, then the local authority may consider adjusting the role. For example there may be a way of reducing the frequency of communication with the public, or doing more in writing. Consideration should also be given to moving the individual to a non-customer facing role.
Dismissal is a last resort and should only be considered if training has not resulted in sufficient improvement (or the individual has unreasonably refused training) and no other suitable post is available. The public authority should follow its usual capability procedures. The Code of Practice also notes that the ACAS Code of Practice on Disciplinary and Grievance Procedures should be followed. The individual should be offered a right of appeal.
The terms of any contract with an agency or self-employed contractor will determine what action can be taken in respect of those types of worker.
Can members of the public complain if they think the duty is not being discharged?
Yes, public authorities must operate a complaint’s procedure, so members of the public can complain if they feel a customer facing public authority worker has insufficient proficiency in spoken English.
If a public authority considers a complaint simply relates to the customer facing worker's race, nationality, ethnic origin or disability, then that complain should be rejected.
Where can I get further guidance on this topic?