Language requirements in public sector employment in Wales

In anticipation of new fluency in language requirements, Calum Higgins examines how similar measures have been operating in Wales

This article was originally published in the March/April 2016 issue of Adviser magazine and was correct at the date of publishing.

Language requirements in public-facing roles in the public sector are not a new thing in Wales, which has two official languages, Welsh and English. There are some parallels that can be drawn between the requirements contained in Part 7 of the Immigration Bill 2015–16 for workers to be fluent in English in England, Wales and Scotland, and for posts that require Welsh speakers in Wales.

In Wales however the primary purpose of existing measures is to prevent the Welsh language from being treated ‘less favourably’ than English, while the Immigration Bill does not have the same aim of seeking to protect a minority. In Wales, Welsh Language posts are divided into two categories, ‘Welsh desirable’ and ‘Welsh essential’. When a post is advertised, a decision is taken to classify it as either ‘essential’ or ‘desirable’, to ensure that a bilingual service is provided to the public.

Some issues around the definitions of ‘public authority’, ‘customer facing’, and ‘fluent’ have been raised about Welsh posts, and also potential issues of indirect and direct discrimination.

Public authority

This should be generally straightforward definition and the legislation applies to all bodies exercising a ‘public function’. It becomes more difficult when applying to an organisation that is providing a service for a public authority (for example an arm’s length leisure company running sports facilities for a local authority). The current legislation may not be clear enough about borderline scenarios where public function is not clear. There might be an inconsistency in the application of these requirements between a lifeguard at a council run leisure centre and a lifeguard in a leisure centre run by a third sector organisation on behalf of a council.

What is ‘customer facing’?

This has been an issue in Wales as different authorities have different internal policies. What makes it less clear is that different areas have different needs in terms of the Welsh language, and case law has focussed on what is ‘justifiable’ as opposed to ‘customer facing’. In practice customer facing roles are those that are classed as Welsh Essential, and are justifiable by reference to the overarching statutory duty not to treat Welsh any less favourably than English. Defining what is justifiable as a Welsh Essential post requires proportionality and clear internal policies by the public authority advertising the post. Public Authorities in Wales must produce legally binding Welsh Language Schemes which assist in showing their justification and proportionality. Public Authorities are now moving to a new system called the ‘Standards’ system, where a Government appointed Welsh Language Commissioner replaces the language scheme with a set of standards that are legally binding and enforced by tribunal for redress. Again, the focus of the standards will be on the duty to provide a service that treats Welsh no less favourably than English, rather than enforcing fluency requirements on staff.

‘How do we define ‘fluent’?’

This is a difficult term to measure, and has usually been a matter for HR departments to define themselves. Job application forms commonly split fluency into the categories of spoken, written, and reading fluency. Many organisations use a system called ALTE to assess their staff, as an objective fluency measure. However ALTE is recommended for internal use only, and most posts are advertised as Welsh Fluency Essential (written, spoken, reading). Candidates generally self-assess or self-define, and their fluency level is confirmed at interview. This can be difficult in practice as many Welsh speakers downplay their abilities and conversely some learners exaggerate their abilities. The easiest way for an applicant to confirm ability in a language is by providing academic evidence, such as a GCSE in Welsh as a first language, but this is not the same thing as ‘fluency’.

Do Welsh-speaking-required posts discriminate?

Generally Welsh has been protected by its status as a minority language within the EU. EU law specifically allows Member States to apply conditions ‘relating to linguistic knowledge required by reason of the nature of the post to be filled.’ There is likely to be a similar approach to English Language requirements where the linguistic ability needed for the post can be justified, although the legitimate aim of preserving a minority language will not apply to English.

Equality Act 2010

The Equality Act 2010 contains the most relevant provisions for setting language requirements. There is some precedent and guidance from the Welsh Language Commissioner on justifying language requirements where indirect discrimination arguments are raised by people with a protected characteristic. The case law shows that Welsh persons who do not speak Welsh are not defined as a separate racial group from their Welsh-fluent compatriots, and are not able to establish a protected characteristic. However, non-Welsh persons who do not speak Welsh are a separate nationality and therefore can claim to have a protected characteristic. This opens the door to the possibility of Welsh language posts being indirectly discriminatory towards non-Welsh persons who do not speak Welsh. The employer must show that the requirement to speak Welsh is a proportionate means of achieving a legitimate aim, that is, to treat Welsh no less favourably than English when providing a service. Employers have been generally successful in showing that Welsh is considered a minority language needing protection and that Welsh language requirements are seen as positive action to ensure that equality of service is provided.

How are the measures enforced?

The Welsh Language Commissioner holds the reins in dealing with complaints about Welsh language service provision. The Commissioner operates a complaints system that enforces the rights of individuals not to be treated less favourably through Welsh rather than English requirements, with the system clearly focusing on enforcing the preservation of a minority language and an authority’s ability to provide an equal service in Welsh and English. This is a key difference from the complaints system being proposed in the UK Bill, which could lead to some workers being criticised by members of the public and discriminated against for not being perceived as English fluent. The Welsh system is far from perfect. However the ethos behind it is primarily one of ensuring equality and protecting a minority language that has official status. The parallels end here, as the UK Bill does not have the same overarching aim.

Calum Higgins is the Welsh Law Expert in the Expert Advice Team at Citizens Advice.