The Immigration Act and the “Fluency Duty” for Public Sector Workers: Speaking in Tongues?
Chris Milsom
What steps are employers expected to take to comply with the Public Sector English Language Requirement? And how do they avoid discrimination challenges in the process?
In its 2015 manifesto the present Government pledged the safe and high quality delivery of public services by ensuring that they are provided to an appropriate standard of fluency in English, or in Wales, English or Welsh. The fact that the mechanism of delivering that objective was the Immigration Act 2016 (Part 7: Language Requirements for Public Sector Workers) is perhaps telling. Section 77 is the lynchpin:-
(1) A public authority must ensure that each person who works for the public authority in a customer-facing role speaks fluent English.
(2) In determining how to comply with subsection (1), a public authority must have regard to the code of practice under section 80 that is for the time being applicable to that authority.
(3) A public authority must operate an adequate procedure for enabling complaints to be made to the authority about breaches by the authority of subsection (1) and for the consideration of such complaints.
(4) In determining whether a procedure is adequate for the purposes of subsection (3), a public authority must have regard to the code of practice under section 80 that is for the time being applicable to that authority.
(5) For the purposes of this Part a person works for a public authority if the person works—
(a) under a contract of employment with the public authority,
(b) under a contract of apprenticeship with the public authority,
(c) under a contract to do work personally with the public authority,
(d) in England and Wales or Scotland, as an agency worker within the meaning of the Agency Workers Regulations 2010 (SI 2010/93) in respect of whom the public authority is the hirer within the meaning of those regulations,
…
(7) References in this Part to a person who works in a customer-facing role are to a person who, as a regular and intrinsic part of the person's role, is required to speak to members of the public in English.
(8) For the purposes of this Part a person speaks fluent English if the person has a command of spoken English which is sufficient to enable the effective performance of the person's role.
(9) This section applies in relation to a person who is working in a customer-facing role for a public authority when this section comes into force as well as to a person who begins to work in such a role after that time.
(10) This section does not apply in relation to a person whose work is carried out wholly or mainly outside the United Kingdom.
Section 80 compelled a “relevant Minister” to issue a code or codes of practice which include provision as to the following:-
“(a) the standard of spoken English to be met by a person working for a public authority to which the code applies in a customer-facing role;
(b) the action available to such a public authority where such a person does not meet that standard;
(c) the procedure to be operated by such a public authority for enabling complaints to be made to the authority about breaches by the authority of section 77(1) and for the consideration of such complaints;
(d) how the public authority is to comply with its other legal obligations as well as complying with the duty in section 77(1).”
By way of The Immigration Act 2016 (Commencement No. 2 and Transitional Provisions) Regulations 2016 these provisions came into force with effect from 21 November. The Code of Practice on the English Language Requirements for Public Sector Workers required under s80 followed on 29 November.
“Public authority,” pursuant to s78, included a body “with functions of a public nature” but excludes an entity “if, apart from this subsection, the person would be a public authority for those purposes merely because the person exercises functions on behalf of another public authority.” This clumsy drafting suggests that those entities who successfully tender for public sector activities are excluded but the Act contemplates the prospect of expanding the scope by way of further Regulations. In any event, the scope of coverage is vast as the stated objective illustrates: “To serve the public it is vital that those working in public-facing roles can communicate in English, or in Wales, English or Welsh, fluently; be it with patients in hospitals, with students in schools or with members of the public receiving local authority services.” Conversely, the scope of employees covered by the so-called “fluency duty” include “permanent and fixed-term employees, apprentices, self-employed contractors, agency temps, police officers and service personnel.” The duty would appear to encompass long-serving employees and short-term agency workers in just the same way. Public sector employers great and small should take note: here the requirements and their potential Equality Act challenges are considered in turn.
The Code
The Code professes that compliance is a mere matter of common sense “without creating more red tape…the aim is to bring standards up to the best.” That it is subdivided into five sections suggests that the hope for simplicity may be misplaced
1. Scope
The Code first attempts to grapple with how to identify a “customer-facing” employee i.e. those who “as a regular and intrinsic part of their role are required to speak to members of the public.” It explains that such discourse may be either face-to-face or by telephone but does not apply to written communication. The Code rules out those such as local authority employed street cleaners or clerical officers before identifying the following factors to consider:-
Is there a business need for interaction with the public?
What is the frequency and form of this interaction?
What is the level of service quality and responsiveness expected by the public?
What is the proportion of the role which would require spoken interaction with members of the public?
What is the nature of the role?
Is English or Welsh language the primary language required for the role?
Complex questions arise therefore where employees have mobility clauses and are expected to be flexible as to their duties or where an employer places a firm emphasis on public-facing ethos throughout their workforce.
The Code applies to all staff employed as at 21 November. Thus even those who have performed loyal service for many years will be subject to the “fluency duty.”
2. Setting a Standard
The Code envisages a flexible standard on what standard of fluency is required “to enable effective performance” depending upon the frequency of spoken interaction; the topic of spoken interaction; whether the communication is likely to include technical, profession-specific or specialist vocabulary; the typical duties of spoken interaction; whether the communication is repeated or supplemented by written material; and the significance of spoken interaction for service delivery. It seeks to provide assurance that in those arenas where there is an English proficiency standard (e.g. the GMC Core Guidance or the National Teaching Standards) no more is expected.
Fluency is said to relate to “a person’s language proficiency and their ability to speak with confidence and accuracy, using accurate sentence structures and vocabulary…a person should be able to choose the right kind of vocabulary for the situation at hand without a great deal of hesitation. They should listen to the member of the public and understand their needs. They should tailor their approach to each conversation appropriate to the member of the public…Public authorities may consider using descriptors to explain to candidates the necessary level of fluency required for the role when recruiting, such as the ability to converse at ease with members of the public and provide advice in accurate spoken English is essential for the post.” It might be said that there are many native speakers who would fail these high expectations.
The Code suggests a number of ways in which employees can satisfy the “fluency duty.” These include:-
Completely answering interview questions in English or Welsh;
Possessing a relevant qualification for the role attained as part of education in the UK or fully taught in English or Welsh by a recognised institution abroad;
Passing an English or Welsh spoken language competency test
The Code explicitly requires public sector organisations to review their policies to ensure that they reflect the fluency duty and “make all public-sector members of staff aware of this new duty and explain the possible actions which may be taken if their proficiency in spoken English or Welsh is found to be insignificant.”
3. Remedial Action
Suggested remedial action includes training which “where appropriate” should be paid for by public authorities during working hours. It is not clear whether additional funding is to be made available to public authorities to achieve this objective. Alternative action might include redeployment to a non-public facing role or reducing the frequency of communications with the public. As the accompanying Impact Assessment recognises, however, “redeployment would not be considered likely across some public sector professions, such as education, where there is a distinct lack of roles that do not require interaction with members of the public, for example, it is unlikely to be possible to re-deploy a teaching assistant to a back office role.” Thus the Code proposes dismissal as a last resort.
4. A Complaints Procedure
Part 7 IA 2016 requires public authorities to devise a procedure which can redress alleged breaches of the fluency duty from members of the public. The public must be notified of such a procedure: the procedure should also explain that complaints as to “accent, dialect, manner or tone of communication, origin or nationality” are not legitimate complaints. A record must be kept of all complaints although this data need not be published.
5. Compliance with other Legal Obligations
Here the Code is light on specifics. Public authorities are helpfully reminded of their obligations in general terms as to race discrimination, disability discrimination and PSED which includes the requirement to “foster good relations between persons who share a relevant protected characteristic and those who do not share it.”
The Consequences
The Practical Problems
Part 7 is silent on the consequences of a public authority defaulting on the fluency duty. It may be, therefore, that it serves as mere symbolism.
If it is to have any meaning, however, there are a great many practical problems in its implementation which are only compounded by the Code. The UKBA statutory Code of Practice For Employers On The Avoidance Of Unlawful Discrimination In Employment Practice While Seeking To Prevent Illegal Working serves to illustrate the problem. It sought to address a binary problem: an individual either has the right to work (in whatever permutation that might take) or he does not. Checks are simple and straightforward. Whilst they can give rise to potential discrimination claims the scope for that is minimised by the recent decision of the Supreme Court in Taiwo v Olaigbe [2016] 1 WLR 2653: immigration status is not a protected characteristic.
Contrast that to the ambiguous definition of fluency found in the Code: an ability to speak “with confidence and accuracy, using accurate sentence structures and vocabulary… without a great deal of hesitation…the ability to converse at ease with members of the public and provide advice in accurate spoken English is essential for the post.” This cannot solely be answered by reference to interview questions or a degree in English since much depends on the context and complexity of an interaction with a member of the public.
In Hak v St Christopher’s Fellowship [2016] ICR 411 Langstaff P was invited to provide definitive guidance on when an ET should appoint an interpreter: this in turn required a consideration of a given litigant’s fluency. His observations are telling: “What is a reasonable opportunity of presenting a case, where there are language difficulties, is not susceptible of one single answer. All will depend upon the court's assessment, in the light of the available evidence, of the standard of understanding and expression, particularly oral where a hearing is to be oral, but written where it is to be written, carefully bearing in mind that easy understanding of the written word may not be reflective of an easy ability with the spoken word. Spoken and written language are different; written documentation can be studied away from the pressures of court, whereas oral expression often calls for immediate comprehension and response, under pressures which are unfamiliar even for those who speak no other language than that of the tribunal concerned.” If the EAT is incapable of providing a single answer it is no wonder that the Code fails to do the same. The problem, however, is one of uncertainty: different employers may take more or less robust approaches to the fluency duty.
The Impact Assessment estimates the total cost of compliance with Part 7 to be £5.5 million. This is an effort to turn the unknown into that which is calculable. It also ignores the heavy reliance on non-British and non-EEA nationals in frontline public services where vacancies already present profound difficulties.
The Equality Consequences
Uncertainty is an unhappy bedfellow where, as the Impact Assessment recognises, certain protected classes are more likely to be affected than others. The potential impact on those with disabilities or those who are non-British is obvious.
Neither the Code nor the Impact Assessment adequately address the argument that the legislation itself falls foul of the PSED and in particular the requirement to foster good relations. The Impact Assessment notes that “communicating in English is important to ensure access to work and participation in community life, and it is linked to increased social integration, social cohesion and trust.” This may be true, but it is equally the case that facilitating access to work is a prime means both of achieving cohesion and improving linguistic fluency. Work is a means of participation: barring that participation merely perpetuates the disunity.
Similarly, the Impact Assessment is silent on the consequences of the broad remit of discrimination found in Article 14 ECHR: ‘The enjoyment of rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as…language…or other status.” It has long been accepted that the right to pursue a profession can engage Article 8 ECHR: any curtailment of Articles 8 and 14 must be strictly justified.
In the context of race discrimination, the Assessment accepts “the additional risk that, as a result of the fluency duty, some public authorities would be minded to favour applicants of British origin in recruitment, as more likely to have the requisite level of fluency in spoken English (or Welsh in Wales) for the role. The Code will make clear that this would be discriminatory and unlawful under the Equality Act 2010.”
The Code sadly does not live up to that assurance. The proposed wording of a job specification – “the ability to converse with ease in English” – is several steps away from an instruction not to speak a language other than English in the workplace (as to which see Kelly v Covance Laboratories Ltd [2016] IRLR 338). It necessitates a high standard, the most convenient means of compliance being the preferred recruitment of British workers.
Moreover, even if a direct discrimination claim were unsuccessful, a hard-headed approach to the fluency duty would be fertile ground for a complaint of indirect discrimination. The provision of effective public services is doubtless a legitimate aim but proportionality will always have to be considered. It is difficult to see how the Code’s proposed wording can be squared with [6.49] of the EHRC Code on Employment:-
‘A construction company employs a high number of Polish workers on one of its sites. The project manager of the site is also Polish and finds it more practical to speak Polish when giving instructions to those workers. However, the company should not advertise vacancies as being only open to Polish-speaking workers as the requirement is unlikely to be justified and could amount to indirect race discrimination'
This is particularly so where other employers in the same field of activity may take a more light-touch approach and where long-serving employees are at the face of heightened scrutiny in the absence of any previous reported concerns. Again, unlike the UKBA Code addressing illegal working the Public Workers’ Code singularly fails to provide practical advice on how discrimination is to be avoided.
In the arena of disability discrimination, the Code explains that where an employee communicates via British Sign Language it is the fluency of the interpreter which must be considered. But no consideration is given to the whole host of impairments which may impede an employee from conversing “without a great deal of hesitation” or “with ease.” The scope for s15 claims in particular – where no comparator is required – is palpable.
Employers are likely also to face serious dilemmas where complaints are made by members of the public which cannot be rejected outright and yet have undertones of discrimination to them. Whilst the third party harassment provisions in the Equality Act were repealed authorities have nonetheless established that an employer may impliedly adopt the harassment of others if no meaningful action is taken to prevent it: Conteh v Parking Partners Ltd [2011] ICR 341 and Sheffield City Council v Norouzi [2011] IRLR 897.
Before concluding – not without irony – “the fleuncy (sic.) duty is a proportionate means of achieving a legitimate aim,” the Impact Assessment assures us that the potential risk of disadvantage to those with protected characteristics, particularly race and disability, is “expected to be minimal.” The present author does not share the same confidence and anticipates litigation where employers embark upon a sea-change from their current practices. Time will tell.
Chris Milsom from Cloisters acted for both Taiwo and Hak as mentioned in the article.