Part 7 of the Immigration Bill 2015 - fluency requirements for public authority workers in public facing roles

Calum Higgins looks at how an existing requirement for public sector workers in customer-facing roles to speak Welsh has operated in Wales

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

The Immigration Bill 2015–16 will come into force as the Immigration Act 2016 at some point this year. It contains a number of measures that will apply in the sphere of employment, including making it a criminal office to work illegally in the UK with a right to imprison people who are working illegally and seize the proceeds of that work. The bill will also make it a criminal offence for employers to employ people whom they have ‘reasonable cause to believe’ are not entitled to work in the UK, with increased penalties on those employers.

Part 7 of the Bill will introduce a Code of Practice ensuring that all public sector workers in customer facing roles can speak ‘fluent’ English, and Welsh in Wales.

The government carried out a consultation on these proposals between October and December 2015, with a summary of responses to be published towards the end of February 2016. The consultation was targeted at all public authorities in England, Wales and Scotland but was open to anyone to respond.

The draft Code of Practice which formed the basis of the consultation can be found at https://www.gov.uk/government/consultations/languagerequirements-for-public-sectorworkers.

The final Code will be issued under s42 of the Act and public authorities will have to have regard to it.

Public authorities are defined, broadly, as bodies which carry out functions of a public nature, so as to include central government departments, local authorities, NHS bodies, state-funded schools, the police, armed forces and public corporations. It will be applied to new staff via recruitment processes, and to existing staff via a ‘complaints-based process’ where members of the public can raise complaints, rather than routine re-testing of existing workers. It stresses that there should be an opportunity given for training or redeployment where fluency is found to be an issue. It applies to ‘workers’ as well as ‘employees’, so will apply to employees, apprentices, self-employed contractors, agency workers and casual workers, but not to workers employed by a private or voluntary sector provider of a public service.

The Code will give guidance on what constitutes a ‘public facing’ role. It will be where regular and anticipated face-to-face and telephone interaction with the public is an intrinsic part of the role.

Employers will have to satisfy themselves that relevant workers have the required standard of fluency, relating to ‘a person’s language proficiency, and their ability to speak with confidence and accuracy, using accurate sentence structures and vocabulary’. It does not relate to regional or international accents, dialect, speech impediments or the tone of conversations.

The Code sets out ways in which fluency might be assessed at recruitment stage and recognises that there is a risk of discrimination at this stage if recruitment processes are not carefully considered and applied.

Employers should consider providing training or re-training for workers, with a reasonable period given for the worker to meet the requirements. Moving the worker, for example to a non-customer-facing role, could be considered where requirements are not then met.

As a last resort, dismissal on capability grounds might be considered.

For existing staff, re-testing is not required and fluency concerns will be driven by a complaints procedure, with employers required to consider legitimate complaints from members of the public. The Code makes it clear that complaints about accents, dialect and so on will not be considered legitimate, and nor will those that are vexatious, oppressive, threatening or abusive.

The interaction of these new requirements with discrimination law is likely to arise in two areas. For the most part it is likely that genuine fluency requirements will engage with the law relating to indirect race discrimination. Where a provision, criterion or practice of the employer’s places a person of a particular race at a particular disadvantage in comparison with persons who are not of that same race, s19 of the Equality Act 2010 is engaged. It may be relatively straightforward to show disadvantage in such cases, but the focus will be on s19(2)(d) which provides the employer with a justification defence; the disadvantage will not result in a finding of discrimination if the employer can show that the existence or application of the provision, criterion is ‘a proportionate means of achieving a legitimate aim’. Employers who have regard to the potentially discriminatory impact of the fluency requirement, and who take care to show that their policies and procedures in respect of it are measured and appropriate and minimise disadvantage, are likely to be able to make out a justification defence. The existence of the fluency requirements will give employers an immediate ‘legitimate aim’ and so the proportionality of their actions will be a key area.

In the case law, there have been more cases about an instruction to communicate in English itself and not another first language, rather than to be fluent in English. Here, staff cohesion, clear communication and effective management have been put forwards as legitimate aims. The stated legitimate aim in respect of fluency in English in public-facing roles will focus on the provision of a service to the public and the stated policy aims of the legislation, but that must be achieved in a proportionate way.

The fluency requirement also has the potential to lead to direct race discrimination or race harassment arguments where individuals or groups who share a protected characteristic relating to race are treated less favourably, or subjected to unwanted conduct relating to race that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating. It is not impossible to foresee, for example, recruitment decisions based on individual assumptions about fluency, or complaints from members of the public that are ‘vexatious’, perhaps relating to accent, dialect, origin or nationality — an employer will have to investigate to the extent of ascertaining that a complaint is not ‘legitimate’, and will have a duty to support and protect the subject of the complaint from the potentially harmful effects of that process. Advisers are likely to have to deal with over-zealous definitions from employers of what are ‘public facing’ roles, poor procedure in terms of avoiding discrimination at recruitment stage and giving workers an opportunity to improve fluency before dismissal or redeployment is considered, and workers facing abusive complaints from members of the public.

Matt Bradbury is an employment law expert in the Expert Advice Team at Citizens Advice.