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UK discrimination law review: English (or Welsh) fluency in the public sector

  • United Kingdom
  • Employment law

21-11-2016

From 21 November 2016 new rules require public authorities to take steps to ensure all staff in public-facing roles speak English (or Welsh, where appropriate) well enough to do their jobs effectively.

The rules are contained in the Immigration Act 1996, with further guidance contained in a Code of Practice, which was published in the Summer. In this article we summarise the requirements and consider the steps authorities will need to take if they are to avoid discrimination and other claims from affected staff.

Who is affected?

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

The new rules 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 employees, apprentices, self-employed contractors, agency temps, police officers and service personnel.

What standard of English/Welsh is required?

The Act requires that affected workers can speak English/Welsh well enough to do their jobs effectively.

The 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, 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; and
  • the significance of the spoken interaction for service delivery.

Existing language standards already apply to some roles, such as in the medical profession. Where that is the case, the Code says it is not anticipated that public authorities will need to impose a higher standard in fulfilling the fluency duty than is already required.

According to the 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 should listen to their customer and understand their needs. They should 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 regional or international accents, dialects, speech impediments or the tone of conversations.’

How is language proficiency assessed?

The Act does not say how fluency is to be assessed, other than requiring authorities to have regard to the Code of Practice.

The 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 for the role attained as part of education in the UK or fully taught in English or Welsh by a recognised institution abroad
  • passing an English or Welsh spoken language competency test or possessing a relevant spoken English or Welsh qualification at CEFR Level B1 or above, taught in English or Welsh by a recognised institution abroad

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 dependent on nationality or ethnic or national origins, for example, or if the standard of fluency expected is set too high.

As is noted in the Code, authorities should:

  • make clear in adverts and job descriptions the necessary standard of spoken English or Welsh required for the sufficient performance of the customer-facing role
  • ensure consistency when advertising for similar types of customer-facing roles
  • ensure those responsible for evaluating candidates understand the spoken language requirements for the role
  • provide interview panel members with an objective method of evaluating candidates against clear criteria set out in the role specification

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.

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 Code suggests that authorities should make sure their contractual arrangements with the supplier, and any instructions to them, spell out any language requirements to reduce the chances of any problems arising.

It is also important to bear in mind that authorities are not required to ensure that their customer-facing staff speak only in English or Welsh to communicate with members of the public. Indeed imposing such a requirement can itself carry discrimination risks.

Complaints process

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 Act, 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 and service users 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 Code, which distinguishes between complaints that are ‘legitimate’, under the fluency duty, and those that are not: a ‘legitimate’ complaint is one about the standard of spoken English. Complaints that, according to the Code, are not about fluency include complaints about accent, dialect, manner or tone of communication, origin or nationality.

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 Code, these types of complaint ‘should not be taken forward.’

Where a complaint is considered potentially legitimate, the Code says a member of staff who is the subject of a complaint should be: notified of the complaint and the action being taken in relation to it; given the opportunity, as soon as practicable, to give their own account of the facts leading to the complaint; and kept fully informed at each stage of the complaints process.

The Code also notes that authorities have a duty of care toward their members of staff and should

consider their wellbeing, being mindful of the potential impact complaints may have, and consider providing staff with appropriate support to ensure that they are protected from vexatious complaints and not subjected to unnecessary fluency testing.

Dealing with poor fluency

The Code says that authorities have a responsibility to support members of staff in customer-facing roles who are found to not demonstrate the necessary standard of spoken English or Welsh fluency. This might involve giving the staff member a reasonable period of time to improve their language skills, and even providing, or paying for, training. Adjustments to a worker’s role may also have to be considered, such as reducing the frequency of communications with the public or supplementing communications with written material to customers. Redeployment might have to be appropriate in some 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.

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