Language fluency of public sector workers

Kim Howell, Geldards

Local authorities in England are obliged to ensure that every person who works for them in a customer facing role speaks fluent English. Human resources teams therefore need to ensure that they have adequate systems in place to comply with this requirement without compromising their obligations to employees under employment law or any other duties they have as public authorities.

The duty of language fluency is contained in section 77 of the Immigration Act 2016, which has been in force since 21 November 2016. It applies to public authorities, defined as persons with functions of a public nature, which include local authorities.

The UK government has published a code of practice on the English language requirements for public sector workers, which public authorities must have regard to. The code provides helpful clarification on some of the practicalities associated with the fluency duty, but there are still some points which public authorities may find unclear.

For the purposes of the duty, a person is regarded as working in a customer-facing role if, as a regular and intrinsic part of their role, they are required to speak to members of the public in English. Examples of roles which the code describes as customer-facing include a local government employee working in customer services and a teaching assistant. Roles where interaction with the public is occasional rather than intrinsic to the role, such as street cleaners or people providing internal support within an organisation, are not customer-facing.

Actions which authorities will need to take to comply with the duty include:

  • identifying which roles in their organisation are customer-facing;
  • identifying the level of language proficiency required for those roles;
  • assessing whether all persons in customer-facing roles speak fluent English;
  • ensuring that their complaints procedures are adequate to enable a person to make a complaint if they believe that the fluency duty has been breached;
  • reviewing their human resources policies and practices to ensure that they comply with the fluency duty, as well as all other relevant legislation. This would include reviewing recruitment processes, selection and appointment processes, advertisements and job descriptions, contracts of employment and staff awareness;
  • reviewing their contracts with employment agencies to ensure that these contain sufficient provision to ensure that staff provided by an agency have the same standard of fluency as their own employees; and
  • reviewing their contracts with self-employed contractors to ensure they can take action if one of their employees fails to deliver services to customers with the required standard of fluency.

Some issues which may be challenging to deal with, or require particular attention, include:

  • In an area where a diverse range of languages are spoken, how can a local authority meet the communication needs of the public? If a person’s first language is not English, they will probably find it more helpful to receive services from someone who speaks the service user’s first language fluently than someone who is fluent in English. Some authorities may have recruited speakers of other languages in recognition of that. The fluency duty makes specific provision for Welsh but not for other languages. The code of practice says that authorities do not have to ensure that public-facing staff speak only in English or Welsh. They can use all their language skills to communicate with speakers of other languages. This is helpful, but fluency in other languages does not lead to any reduction or exemption in the requirement for fluency in English or Welsh.
  • The fluency requirement applies to everyone working for a public authority in a customer-facing role even if the authority employs several people in the same role, for example to serve on a reception. In an area where there are several first languages, it may be most helpful to the public for a reception to be staffed by a mixture of people who are fluent in English and in other languages. The code of practice gives no indication that the legislation can be interpreted in that way. Therefore, while local authorities should consider whether it would be helpful to their communities to encourage staff to have other language skills, all their staff in a customer-facing role will need to speak English or Welsh at least to the level which the relevant authority has identified as the minimum required.
  • Authorities will need to ensure that they meet their duties under the Equality Act 2010. When they put arrangements in place to meet the fluency duty, they will need to consider how these arrangements will affect their workers and what implications this may have on those workers’ rights under the Equality Act 2010. For example, they will need to ensure that their recruitment processes, their employment practices and their complaints procedures do not discriminate directly or indirectly against workers from particular ethnic groups.
  • The legislation defines someone as fluent if they have a command of spoken English which is sufficient to enable the effective performance of their role. This means that individual authorities will need to identify what standard will be sufficient to enable their workers to perform their role effectively. This could result in a variety of different standards being applied and service users believing that they will receive different levels of customer service in different areas.
  • Employers will need to take remedial action if their workers in customer-facing roles do not have a sufficient level of fluency. The code suggests that training and redeployment could be considered but that ultimately an authority may need to consider dismissal of an employee as a last resort. Any authority which does consider dismissing employees to comply with the fluency duty will need to ensure it complies with its own policies and procedures, as well as any law applicable to it as an employer. It will need to ensure that any action which it takes in respect of particular employees is fair and does not provide any grounds to be seen as discriminatory. Employers who think that they may need to consider taking remedial action in relation to particular employees should seek advice from specialist public sector employment lawyers.

The intention behind the fluency duty is described in the code of practice as a common-sense approach to meeting the public’s reasonable expectation to be able to communicate in English when accessing public services. Local authorities will be keen to ensure they meet the needs of service users effectively but their compliance with this particular duty will require them to devote resources to achieving, maintaining and monitoring adequate levels of fluency without compromising their compliance with other duties.

A copy of the code of practice on the English language requirement for public sector workers can be accessed here.