What is the fluency duty?
In July 2016 the Government published a code of practice (“Code”) and impact assessment on the fluency duty. Public authorities must have regard to the Code when fulfilling their statutory fluency duty under the Immigration Act and failure to do so could result in an expensive judicial review challenge.
The duty is aimed to ensure that every member of the public receiving help or advice from a public authority is served by someone who can provide them with advice in clear English (or Welsh). A person is deemed to speak fluent English if they have a command of spoken English which is sufficient to enable the effective performance of their role.
According to the Code:
Fluency relates to a person’s language proficiency and their ability to speak with confidence and accuracy, using accurate sentence structures and vocabulary. In the context of a customer-facing role, a person should be able to choose the right kind of vocabulary for the situation at hand without a great deal of hesitation. They can listen to their customer and understand their needs. They can tailor their approach to each conversation appropriate to their customer, responding clearly with fine shades of meaning, even in complex situations.
However, it is important to note that the code also states that, “fluency does not relate to regional or international accents, dialects, speech impediments or the tone of conversations.”
What does the Code of Practice say?
- Helps to determine whether an employee is in a public facing role;
- Provides guidance on how to set a standard of spoken English or Welsh for customer facing roles;
- Considers how to determine if an employee satisfies the fluency requirement and whether tests or qualifications are necessary in recruitment procedures;
- Provides options for remedial action where staff do not meet the necessary standard for English or Welsh (including training and re-training, redeployment and even dismissal);
- Suggests changes to policies and practices;
- Sets out the complaints procedure which should be followed if there is a complaint regarding an alleged breach of the fluency duty; and
- Provides guidance on compliance with some other legal obligations such as the public sector equality.
Which employees/workers does the fluency duty apply to?
The Act refers to public sector workers in a “customer-facing role”. The Code and other supporting documents confirm that a public sector worker will be 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, or in Wales in English or Welsh. This can be either in person or on the telephone.
But does it apply to further education colleges?
The duty applies to “public authorities” which carry out functions of a public nature. Unhelpfully, there is no specific reference to further education bodies in either the Act or the Code (unlike the public sector equality duty under the Equality Act 2010). The Code states that if bodies are uncertain as to whether they fall within the definition, four factors should be considered. These factors are:
- Undertaking the responsibilities of central or local government – the extent to which the organisation has assumed responsibility for the function in question;
- Public perception – the nature and extent of the public perception as to whether the function in question is public rather than private;
- Exercising statutory powers – the nature and extent of any statutory power or duty in relation to the function in question, or whether the function involves or may involve the use of statutory powers;
- Publicly funded – the extent to which the state makes payment for the function in question.
Although no timetable is as yet established, the government has stated its intention to extend the code to cover individuals employed by private/voluntary sector organisations where they are engaged in the delivery of public services. Even if colleges are not covered by the Act at present, they may be in the future, and it is therefore worth having regard to the Code now and taking preparatory steps to ensure compliance with the fluency duty.
So what do we do?
Given the uncertainty and the fact that, in reality, the duty is not excessively onerous, further education institutions may decide to comply with the Code. Providing support to those employees who are not fluent in English (or Welsh) is a sensible approach to take in any event, and if you already have complaint procedures in place so you may find that you are largely compliant.
If you think the Code may apply to you, and you have not already done so, you may wish to review existing recruitment and HR policies, as well as the existing complaint procedures, to ensure you comply.
When applying the Code, colleges will need to have regard for the potential discrimination implications of imposing its requirements, as well as ensuring that all the usual employment law obligations are met. As always, the best approach is to deal with each case on its own facts and merits and we are always happy to advise on specific cases.