As the Immigration Bill looks set to be passed any day, an unusual aspect of it is attracting the greatest attention. The Act will require public authorities to ensure staff in customer-facing roles can speak English sufficiently well to do their jobs effectively (or Welsh, where appropriate). The new rules are not expected to take effect until October 2016 at the earliest.
An accompanying Code of Practice, currently issued in draft form pending publication of a revised final version, explains how the provisions aim to work in practice. For example, the draft code clarifies that authorities must assess the required degree of language fluency according to the role and various other factors, such as the frequency and nature of spoken interaction, the need for technical or specialist vocabulary, and whether the communication is supplemented by written material.
However, beyond such initial questions lurks a far more complex issue for public sector employers to consider: the potential for actual or perceived discrimination or bias in applying these new requirements.
Ensuring a fair approach
The draft Code touches upon the need for compliance with the Equality Act 2010. However, it is easy to see how employers could lose sight of these issues when concentrating upon the fluency duty. Employers will therefore need to balance their respective legal obligations in this context and avoid disproportionate focus on fluency alone, which could lead to unfairness and inequality of approach.
At the recruitment stage employers may encounter fewer issues since thought will have been given to the requirements of a particular role.
Applying the requirements to existing staff is potentially more hazardous but warrants similar care. Particular difficulty may be encountered in respect of agency workers, many of whom will be subject to the new provisions but may not have gone through any form of interview process with the authority. The draft Code suggests that authorities should make sure their contractual arrangements with the supplier, and any instructions to them, spell out any language requirements so there is less chance of problems.
Whatever approach to assessing fluency is taken, the key is to fix the standard to the role. It should also be noted that this is not exclusively an issue of race or nationality. 'Fluency' as described in the draft Code "does not relate to… speech impediments or the tone of conversation". Therefore employers should be mindful of unwittingly treating those with a disability affecting speech or communication skills less favourably, which is potentially discriminatory. They will also need to consider reasonable adjustments that might mitigate any disadvantages.
Dealing with poor fluency
The draft Code says that if an employee in a customer-facing role is not sufficiently fluent the authority should offer appropriate support, possibly allowing time for improvement, or access to training. Redeployment might have to be considered in appropriate cases. If all else fails, dismissal will be the ultimate sanction.
Workers who feel they have been unfairly treated may raise complaints of unfair dismissal or of direct or indirect discrimination. Employers should, therefore, bear in mind that they could one day have to justify to an employment tribunal their fluency standards and how they have been applied.
There is also an additional catch for employers: authorities will have to operate a complaints procedure so that members of the public can raise concerns if they think an individual’s language skills are not up to scratch. Here too organisations must be fair and even-handed but also mindful of discrimination on the part of the complainant.
Naeema Choudry is a partner in Eversheds Human Resources Practice Group