Immigration analysis: What will the Immigration Act 2016 (IA 2016) mean in practice? Akua Reindorf, a barrister at Cloisters Chambers, considers the key provisions relating to language requirements for public sector workers.
What are the main provisions relating to the English language requirement?
The English and Welsh language requirement contained in IA 2016, Pt 7 came into force on 21 November 2016.
The requirement applies only to public authority employers. The employer must ensure that members of its workforce who are in customer-facing roles are able to speak fluent English (or Welsh in Wales (IA 2016, s 82(2)). This is referred to as the ‘fluency duty’. It extends to employees, apprentices, contractors, agency workers, police officers or those in Crown employment (IA 2016, s 77(1), (5)). The fluency duty applies to the existing workforce as well as those engaged after the duty came into force (s 77(9)).
The meaning of ‘public authority’ is set out in IA 2016, s 78. With a few specific exceptions (IA 2016, s 78(8)), it extends to anybody carrying out functions of a public nature (IA 2016, s 78(1)) other than those who only exercise public functions on behalf of another public authority (IA 2016, s 78(2)).
The Code of Practice (to which employers must have regard under IA 2016, s 77(2)) states that factors to take into account in determining whether an employer is a public authority are:
- whether it undertakes the responsibilities of central or local government
- public perception as to whether the function is public or private
- the nature and extent of any statutory power or duty in relation to the function, and
- the extent to which the function is publicly funded (para 1.3)
In Scotland, Wales and Northern Ireland the fluency duty does not apply to those exercising public functions insofar as they relate to devolved matters (IA 2016, s 78(3)–(7)).
A ‘customer-facing role’ is one in which an intrinsic part of the job is speaking to members of the public in English or Welsh (IA 2016, s 77(7)). This should be ‘regular and planned’ interaction as defined in a job description, and includes both face-to-face and telephone conversations (Code of Practice, paras 1.10–1.11).
Factors to take into account in deciding whether a role is customer facing or not are:
- whether there is a business need for interaction with the public
- the frequency and form of the interaction
- the level of service quality and responsiveness expected by the public
- the proportion of the role which requires spoken interaction with members of the public
- the nature of the role, and
- whether English or Welsh is the primary language required for the role (Code of Practice para 1.12)
Fluency is defined as a command of the language which is sufficient to enable the effective performance of the role (IA 2016, s 77(8)). Thus the standard is dependent on the nature of the role. The factors to take into account are:
- 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 duration of spoken interaction
- whether the communication is repeated in or supplemented by written material provided to customers, and
- the significance of the spoken interaction for service delivery (Code of Practice, para 2.3)
More detailed guidance on what fluency consists of is given in para 2.8 of the Code of Practice, and includes ‘responding clearly with fine shades of meaning, even in complex situations’.
The concept of fluency does not relate to accent, dialect, speech impediment or tone (Code of Practice, para 2.11).
Employers may take into account a range of evidence as to spoken language skills:
- competency at interview
- a relevant qualification from a recognized institute or a competency test (Code of Practice para 2.13)
If a member of the customer-facing workforce does not meet the fluency requirement, the employer should consider providing training or re-training to give the worker the opportunity to meet the standard within a reasonable time (Code of Practice, para 3.3). Alternatively the employer may consider redeployment or adjustment of the role so as to reduce or remove the spoken interaction with the public (Code of Practice, para 3.4). This might include supplementing oral communications with written communications. Dismissal should be a last resort (Code of Practice, para 3.10), and should not take place without an investigation under the employer’s capability, disciplinary or ‘other usual’ procedures (Code of Practice, para 3.11).
Public authority employers should comply with their obligations under the Equality Act 2010 (EqA 2010), including the Public Sector Equality Duty (Code of Practice paras 5.2–5.5).
Employers must have adequate procedures in place for considering and determining complaints about any failure to comply with the fluency duty (IA 2016, s 77(3), Code of Practice, para 4). Employers are not obliged to deal with complaints that are vexatious, oppressive, threatening or abusive (Code of Practice, para 4.5). An investigation into complaint should include an objective language assessment against clear criteria (Code of Practice, para 4.8). A record should be kept of all complaints (Code of Practice, para 4.13).
Will any matters be left to secondary legislation?
The Code of Practice is brought into force by IA 2016, s 80.
The commencement date of 21 November 2016 is set by regulation 3 of the Immigration Act 2016 (Commencement No 2 and Transitional Provisions) Regulations, SI 2016/1037.
Are any of these changes welcome?
Those who feel that there is currently a problem with the standard of language fluency in public services may welcome this legislation. The government’s impact assessment of 20 May 2016 points out that the public sector is often a monopolistic provider of services, and argues that intervention is necessary in the absence of market forces to influence quality and regulation of service.
Are any of these changes cause for concern?
It is far from clear that there is any real need for these burdensome and potentially discriminatory provisions.
The impact assessment states that ‘at most 0.4% of the 1.8 million employees who will be affected by the duty are potentially insufficiently fluent’ (Code of Practice, para 43). Scant evidence is cited in support of this low and speculative figure, and it is noted that consultees stated that they already conduct routine language assessments and think that few or none of their staff are insufficiently fluent (Code of Practice, para 44). The cost of implementation is estimated at between £4.4 and £7.5m. It was not felt possible to estimate any financial benefits of the scheme. The reason for the introduction of the duty appears to be simply ‘to indicate to the public that the Government recognises and acts on their concerns’ (Code of Practice, para 4).
The scheme will require many public authorities to construct and implement new employment and recruitment policies as well as the statutory complaints procedures. It is of particular concern from this perspective that the required standard of fluency is to be defined against the needs of the specific job, so that each job will need to be separately assessed by the employer. This will put an administrative strain on public services whist failing to ensure any consistent nationwide basic standard.
There are also practical challenges inherent in the scheme in relation to the recruitment of agency workers, particularly where large numbers of temporary staff are taken on at short notice.
The scope for unlawful discrimination is considerable. There is a risk that organisations will simply not hire non-native speakers for fear of falling foul of the regime.
Similarly, the Code of Practice states that no action should be necessary to assess the language skills of those who are obviously fluent (Code of Practice, para 2.12). How then is an employer to determine who should be subjected to a fluency assessment? If it is only those who are not native speakers, it is easy to see how this could give rise to complaints of direct or indirect race discrimination.
Employers are called upon not only to decide what level of fluency is required for the post, but also to distinguish between proficiency, accent, dialect and tone. The dividing line will often be far from obvious, and the distinction may require an unreasonably high level of linguistic expertise.
The public complaints procedure is the greatest cause for concern. An employer should decline to investigate a malicious or racist complaint or a complaint about accent, dialect or tone. It may be very difficult to identify such a complaint and distinguish it from a complaint about a worker’s fluency. A member of the public may find that a strong accent presents as much of a comprehension barrier as a low level of language fluency, and may express the complaint as one about language proficiency. The employer may feel duty bound to investigate complaints which fall on the borderline of racism, exposing workers to potentially discriminatory complaints and humiliating language testing. The employer must perform a difficult balancing exercise between its duties under this scheme and its obligations under the EqA 2010.
How will these changes be rolled out?
The statutory scheme is already in force. Public authorities were expected to have processes in place to comply with the duty in time for commencement on 21 November 2016.
Akua Reindorf specialises in employment and discrimination law. She has substantial experience in managing complex long-running discrimination trials, appears frequently in the employment appeal tribunal and has appeared in the Court of Appeal, Supreme Court and Court of Justice of the European Union. Akua is instructed by unions and individual claimants across all sectors of employment. She has also undertaken pro bono trial work representing migrant domestic workers who have experienced extreme physical and psychological abuse in the workplace and have little or no English.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This article was first published on Lexis®PSL
Immigration analysis on 8 December 2016.