Fluent English Language requirements for Public Sector Workers

In August 2015 the Government announced that public sector workers “must have fluent English if they work directly with the public in England, Scotland and Wales”, in order to ensure higher quality public services are provided to the public.

The new requirements form part of 2016 Immigration Act and the Government have issued guidance in a code of practice on how each organisation will test their staff, which you can read here.

These new rules came into effect from 21st November 2016.

What organisations are covered by the new english language ‘fluency’ duty?

• Any organisation that carries out “functions of a public nature”, including NHS, councils and local government bodies, central government departments, state schools, the police, armed forces, public corporations.
• It does not yet apply to the voluntary sector or to private service providers of public services, although the Immigration Act contains power to extend the duty to these sectors at a later date.
• It does not apply to the security and intelligence agencies or GCHQ.
• It only applies to public authorities that exercise functions relating to non-devolved matters in Scotland, Wales and Northern Ireland (as defined by the Scotland Act 1998, Government of Wales Act 2006 and the Northern Ireland Act 1998).

Public bodies must satisfy themselves that customer facing staff speak fluent English (or Welsh) – through either a formal test of the individual, or where they demonstrate fluency at interview, or where existing employees have already proved themselves in the job (the Code says that not all existing members of staff will need to be tested, if they are clearly fluent to the necessary standard for the role).

The organisation must make sure existing staff are aware of the new requirement and advise staff about what might happen if staff do not meet the fluency level required. Recruitment practices, Job adverts and Job descriptions for the future will need to state the standard of English (or Welsh) required for the role and all applicants must be consistently measured against that standard.

The Code suggests that public authorities may consider using ‘descriptors’ to explain to candidates the necessary level of fluency required, 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”.

Training should be provided for line managers and those involved in recruitment.

Contracts of employment and contractors agreements made need to be reviewed and amended to refer to the required standards. As will contracts and service level agreements with employment agencies, to ensure they supply only candidates that meet the new requirement.

What types of worker are affected by the new rules?

All permanent and fixed term employees, agency temps, casual and other workers, self-employed contractors, apprentices, police officers and service personnel, directly employed by a public body are covered.

Existing staff are covered and all new recruits.

It does not extend to ‘workers’ employed directly by a private or voluntary sector provider of a public service, or whose work is carried out mainly or wholly outside the UK.

Some public-facing roles are already subject to language standards – e.g. teachers in local authority maintained schools and Doctors – and the Code says it is not anticipated a higher standard will need to be imposed than already exists.

If existing staff do not meet the new requirements they must, where appropriate, be given training, during their normal working hours at the employer’s cost. If the required standard is not met during a reasonable time, then the organisation can consider adjusting the role, to for e.g. reduce the frequency of communication with the public, or moving the worker to a non-customer facing role. The last resort, where all training has failed or the worker has unreasonably refused training and there is no other suitable job, is dismissal in accordance with the organisation’s capability and disciplinary procedures.

What is a ‘customer facing’ role?

A job where speaking to the public in English or Welsh ”is a regular and intrinsic part” of the role, either in person or on the phone. The degree of interaction with the public needs to be regular and planned. Staff who occasionally speak to the public as they carry out their job are not considered to be in public-facing roles.

The Code of Practice:

• Has a checklist that employers can use to assess each role in terms of its need for fluency – 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 proportion of the role requires spoken interaction with members of the public; is English (or Welsh) the primary language required for the role?
• The Code says that “fluency relates to a person’s language proficiency and their ability to speak with confidence and accuracy, using accurate sentence structures and vocabulary”.
• Gives examples – so a teaching assistant required to communicate with pupils to support their learning, a customer service employee who takes calls and queries from the public and a DWP Work Coach having daily face to face discussions with members of the public WOULD be seen as customer facing; a street cleaner, and a clerical officer or IT Technician who provide internal support within the organisation would not.
• Interestingly the Code says that “the fluency duty is unlikely to apply to members of staff whose role involves performing content or editorial functions for a public service broadcaster, such as journalists, programme-making roles or broadcast output. The nature of these roles may require interaction with members of the public, but the extent, frequency and form of interaction with the public either face-to-face or by telephone is likely to be limited and thus not an intrinsic part for the effective performance of the job”.
• Has a list of factors to be considered when determining the fluency standard required for each job. Fluent means the member of staff has a command of spoken English (or Welsh) which is sufficient to enable the effective performance of their role. The factors to be considered are – the frequency and duration of spoken interaction; the topic; whether communication is likely to include technical, professional or specialist vocabulary; whether the communication is repeated or supplemented by written material; the significance of the spoken interaction for service delivery.
• The Code points out that “fluency does not relate to regional or international accents, dialects, speech impediments of tone”.
• Contains information about testing and different levels of fluency, language qualifications and training options for staff.
• Also makes it clear that that staff can still speak another language to communicate with members of the public who speak other languages.
• Advises that a complaints procedure regarding the duty is put in place for members of the public to use if they believe the required standard is not met.