The Government has published a Code of Practice aimed at helping public sector employers comply with their ‘fluency duty’ under Part 7 of the Immigration Act 2016.
Under the Act, public sector workers in customer-facing roles must be able to speak fluent English, and in Wales, English and Welsh. ‘Customer-facing’ applies to roles where speaking to members of the public in English (and/or Welsh) is a ‘regular and intrinsic’ part of the job.
The Government has stated its intention to avoid placing additional burden on organisations, however the duty clearly presents a new area of HR compliance risk for public sector employers with foreign workers.
What does the Code of Practice say?
The fluency duty is intended to ensure every member of the public can access help, advice and services in clear English. The Government has developed the Code of Practice with the aim of supporting public sector employers in meeting their obligation.
The code outlines:
- the minimum standard of spoken English to be met;
- the action to be taken by a public authority where someone does not meet that standard;
- the procedure to be operated to deal with any complaints; and,
- how the public authority can comply with its other duties including its obligations under the Equality Act 2010.
The Code of Practice explains that it is the responsibility of the public sector employer to assess the particular nature of the job role and the appropriate level of fluency required in order to perform the job effectively.
Who does the Fluency Duty apply to?
The fluency duty applies to existing staff as well as new recruits in most public sector workplaces, such as local and central government, the NHS and the police.
Workers within some areas of the public sector are already required to meet specific language standards, such as medical and teaching. The fluency duty however extends language competency requirements to an additional estimated 1.8million public sector workers in customer-facing roles.
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’ under to Section 78 of the Immigration Act 2016.
No further action is required of employees who are already fluent.
What does this mean for employers?
Under the Code, the Government has published guidance for public services to ensure that workers who have contact with members of the public are sufficiently fluent in English to perform their role.
This includes a range of actions on the part of employers to ensure they are compliant. Employers will need to look at:
- Identifying and informing all customer-facing workers of their duty to speak fluent English
- Adapting recruitment and HR policies and criteria to meet the new standard without triggering discrimination under the Equality Act 2010
- Updating relevant contracts of employment in line with the new duty
- Communicating changes internally
- Training personnel, including HR and line managers
- Assessing roles and applying a required standard
- Making clear to job candidates of the language requirement and assessment processes
- Adapting evaluation techniques to objectively and adequately assess candidates’ language capability
- Developing processes for remedial action where employees have failed to meet the standard
Critical to all employers’ responses to the fluency duty is mitigating the risk of discrimination; both on the grounds of race or even disability (e.g. speech impediments) by assessing and evaluating language capability fairly and objectively within customer-facing roles.
How will the duty be enforced?
There will be no direct policing of the duty as enforcement will rely on complaints made by members of the public.
This means employers must adapt their complaints procedure, and be clear as to what the process is for members of the public to make a complaint about a worker’s language proficiency.
Importantly, the process should include action by employers to vet all complaints to ensure they relate specifically to fluency, and not race, accent, tone or manner of communication, which employers are advised to reject. Putting this into practice effectively and consistently is expected to be challenging for organisations.
What does the fluency duty mean for foreign workers?
The fluency duty applies to all new recruits and existing staff in the public sector in customer-facing roles, irrespective of nationality, and provided individuals have the relevant permissions to work in the UK. It undoubtedly places additional burden on public sector employers, who already face substantial HR and immigration compliance requirements as part of their duties as an employer.
For existing foreign employees, the impact of the duty is dependent on their particular role and the employer’s assessment of the requisite level of language competency.
The Code does not require employers to test all existing workers, however the duty does require employers to identify and support staff who do not meet the required standard. For example, to ensure a fair and objective application, this could mean adapting the appraisal process to include a form of fluency assessment, and responding to any fluency complaints with a language competency assessment.
Employers should have a clear course of action for workers found to fall short of the required standard. This could include adjustments to the role, internal transfers or in extreme circumstances even dismissal.
It remains to be seen if and how the duty will impact recruiting workers from abroad, and whether for those roles assessed as falling under the duty, it will become more difficult to hire from overseas.
This is unlikely to be the case for those employers who already operate language assessments as part of their recruitment processes. However, in light of the Code of Practice, existing approaches should be reviewed to ensure they meet the specified standard and avoid potential for complaints.
Crucially, it is important for employers to ensure that their assessment of the level of language competency among recruits and employee is reasonable and proportionate to the aim of meeting the duty, to avoid the potential for discrimination claims.
DavidsonMorris are experienced advisers to public sector organisations on HR compliance. If you have any queries about the fluency duty or any other matter relating to HR immigration and compliance, please contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals