The government has updated the draft Code of Practice which provides guidance for employers on the new English language requirement. The new legal duty requires all customer-facing public sector workers to speak fluent English in England (or English or Welsh in Wales). According to Ben Gummer MP, it is hoped to improve the quality and efficiency of the UK’s public services to become ‘the finest in the world’.
On 31 October 2016, the Secretary of State made a second commencement order, bringing into force further provisions of the Immigration Act 2016.
Sections 77 to 84 (language requirements for public sector workers) will come into force on 21 November 2016.
Which bodies must introduce the English language requirement?
The Code of Practice applies to all public authorities, defined in Section 78 of the Immigration Act 2016 as those which carry out ‘functions of a public nature’ but not those which carry out functions on behalf of another public authority. They include non-department public bodies, councils and other local government bodies, NHS bodies, public corporations, state-funded schools, central government departments, the police and armed forces.
The duty does not currently apply to voluntary sector or private sector providers of public services as these providers are not classified as ‘public authorities’ according to Section 78 of the Immigration Act 2016. However, Section 80 of the Immigration Act does confer a power on the Minister to extend the definition of 'public authorities' to potentially capture these types of bodies in the future. As stated in the Code of Practice, it is advised that if bodies are uncertain as to whether they carry out functions of a public nature, the following factors should be considered:
- 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.
- Public Perception - the nature and extent of the public perception as to whether the function in question is public rather than private;
- Undertaking the responsibilities of central or local government - the extent to which the organisation has assumed responsibility for the function in question;
Section 79 of the Immigration Act 2016 allows the fluency requirement to be extended, at a later date yet to be released, to cover a person who works for a contractor of a public authority which includes an agency worker.
The fluency duty applies to both existing and potential new employees in customer-facing roles. Public authorities must apply the fluency requirement to all staff in customer-facing roles, including permanent and fixed term employees, apprentices, self-employed contractors, agency temps, police officers and service personnel.
What level of fluency is required?
The fluency duty does not impose a standard level of English to be met by all public-sector employees. The Code of Practice explains that it is the responsibility of the public authority to assess the particular nature of the job role and the appropriate level of fluency required in order to perform the job effectively.
What practices must public authorities put in place?
For all bodies that fall under the category of ‘public authorities’, it is important that they consider now the legal duties and obligations that will be placed on them in accordance with the Code of Practice.
Public sector employers can, but are not required to, specify a minimum spoken English qualification as long as it is above the Common European Framework of Reference for Languages, Level B1. Indeed, many non-EEA migrants may have already passed a similar qualification for the purpose of their visa application and would therefore be able to provide evidence of this. Nevertheless, employers are free to satisfy the requirement through other means, such as a test or formal interview.
What remedial action must be taken?
If existing employees do not meet the set fluency requirement, the Code of Practice states that employers should consider providing training programmes and language support, redeployment to non-customer facing roles or as a very last resort, dismissal (subject to employment law advice).
How should complaints be dealt with?
Section 4 of the Code of Practice outlines the procedure that public authorities must implement should a complaint be made regarding an alleged breach of the fluency duty. Public authorities are advised to assess complaints against clear objective criteria as set out in the role specification, to fully inform the relevant member of staff and to take appropriate action. Public authorities are reminded that they have a duty of care towards their members of staff and that aggressive or abusive complaints, or those about a member of staff’s accent or nationality should not be taken forward.
How should public authorities prepare?
As the English language requirement may extend to agency workers, it is advisable that the contracts of agency workers are checked carefully by the public authority in order to determine the steps that they can reasonably take should the individual agency worker fail to meet the necessary standard. Employers must be careful that all new procedures are in accordance with the Equality Act 2010.
We would recommend that public-sector employers review HR policies and practices to ensure that they reflect the fluency duty and comply with other legislation to ensure that they are prepared for the introduction of the new legislation coming into force in Autumn 2016. All staff and those responsible for recruitment of the new requirement should also be informed of the new requirement without delay.
If you have any questions regarding the information contained in this article, please contact Chetal Patel, a Senior Associate in the Immigration department, or Victoria Cook, a Senior Associate in the Employment department.
Posted on 03/10/2016 in Legal UpdatesBack to Knowledge