The Immigration Act 2016 introduces a new requirement for public authorities to ensure that workers in customer-facing roles speak fluent English.
The government has now issued a draft Code of Practice giving detailed guidance on the requirement.
When does the requirement come into force?
This has not been finally confirmed, but looks likely to be October 2016.
Which workers are covered?
It includes permanent and fixed-term employees; apprentices; agency workers; and other workers – the Code indicates that this will include self-employed contractors.
It applies to new recruits and existing staff.
What is a customer-facing role?
A person working in a customer-facing role is someone “who, as a regular and intrinsic part of their role, is required to speak to members of the public in English”. This could be in person or over the telephone.
The Code gives examples of aspects of work relevant to deciding whether a role is customer-facing.
What is fluent English?
This is defined as a command of spoken English (or, in Wales, English or Welsh) “which is sufficient to enable the effective performance of the person’s role.”
The Code lists factors that may be relevant when considering the standard required, and makes clear that fluency does not relate to regional or international accents, dialects or speech impediments.
Will we need to test workers on their language skills?
The Code states that if a particular standard of spoken language ability is an essential requirement for a role, you may need to assess applicants on their abilities, either through a formal test or as part of the interview process.
It describes evidence that may be available regarding language abilities, but mentions that employers will still need to satisfy themselves as to whether someone is sufficiently fluent.
The Code states that it is not envisaged that existing members of staff will all need to be tested.
Can workers still speak other languages?
Yes. The Code makes clear that although relevant staff will need to be able to speak English to the necessary standard, they can, where appropriate, use different language skills to communicate with members of the public who speak other languages.
Which public authorities are covered?
A public authority is defined as ‘a person with functions of a public nature’. The duty won’t initially apply to the voluntary sector or private sector providers of public services, but may be extended to them at some point.
All public authorities in England are covered. However, in Scotland, Wales and Northern Ireland it only applies to public authorities exercising functions relating to non-devolved matters.
If, for example, a public authority in Scotland deals with both devolved and non-devolved matters, it will be expected to comply with the fluency duty in respect of staff in customer-facing roles dealing with non-devolved functions.
If you are need advice as to whether your organisation, or a part of it, is covered, please speak to your usual Brodies contact.
What if a worker does not meet the required standard?
The Code advises that public authorities should consider providing training to support staff to meet the requirements and give them a reasonable opportunity to meet the necessary standard. What is ‘reasonable’ is likely to depend on the circumstances of each case.
If the worker does not meet the standard, the Code indicates that adjusting their role or, as a last resort, dismissal might be options. However, employers will need to tread carefully as these routes could of course lead to constructive unfair dismissal or unfair dismissal claims.
Actions for public authorities
Public authorities caught by this requirement will need to:
- Review their policies and practices, particularly around recruitment, to ensure the fluency duty is reflected;
- Consider how they will implement this requirement, without risking discrimination claims;
- For public authorities in Wales – consider how to implement the duty in line with other obligations relating to the Welsh language;
- Consider how they will communicate with existing staff regarding this requirement;
- Consider amending relevant contracts of employment to stipulate any required language standard;
- Review the wording of job adverts and descriptions to include reference to this requirement if necessary;
- Provide training for line managers and those involved in recruitment;
- Review contracts with recruitment and employment agencies to ensure that, where appropriate, only candidates meeting this requirement are supplied;
- Put in place a complaints procedure regarding the duty – this is explained in the Code.