Customer-facing employees in both public and private sector organisations are increasingly expected to be able to speak fluent English. However, efforts to assess fluency can be controversial.
Earlier this month, the High Court decided to reject an attempt by taxi firm Uber to challenge the requirements of a new English language test for private-hire drivers. Transport for London (TfL), which is responsible for transport in the capital, plans to introduce rules that mean all Uber drivers from non-English speaking countries will have to pass a reading, writing and listening test in order to obtain or renew their licence. TfL says that the test is part of a range of measures designed to enhance public safety.
Uber claimed that the requirement was disproportionate and contravened the Equality Act. However, the court has accepted the principle of the new test and the standard of English it will require, although Uber was given permission to proceed with its challenge as to whether exemptions should be permitted for some drivers.
The ruling comes at a time when the government is planning to bring into force Part 7 of the Immigration Act 2016, which will require all public sector workers in customer-facing roles to speak fluent English. The stated intention is to increase standards in order to meet “the public’s reasonable expectation to be able to speak English when accessing public services”.
The Cabinet Office and Home Office have published a code of practice aimed at supporting public authorities in complying with the new rules. The code:
The new rules will affect a significant number of public sector roles. Some positions, including many within the teaching and medical professions, are already subject to a language standard that will be sufficient to meet the requirements of the new legislation. However, the government estimates that around 1.8 million public sectors workers in customer-facing roles are not currently subject to any formal English language standard.
To comply with the fluency requirement, public authorities will need to ensure that managers and relevant HR personnel are familiar with the new rules and the code of practice. Policies and procedures, including those that relate to recruitment, will need to be updated.
Systems will need to be devised for assessing the language skills of existing staff in customer facing roles. Suitable training will need to be made available to those who do not meet the required standard.
Public authorities will need to consider options for remedial action. In some cases it might be possible to make adjustments to a role, such as reducing customer contact or providing for communications to be supplemented with written material. The option of redeployment to another role will also need to be considered.
If all else fails, a public authority could consider dismissing an employee who is unwilling or unable to meet the required standard. The code makes clear that the matter should first be investigated in accordance with the employer’s capability and disciplinary procedure.
Although the code provides useful guidance, the appropriate standard of English is something that each employer will need to determine on a role by role basis. It seems likely that difficult decisions will sometimes have to be made about what degree of fluency is required and how this should be assessed. A requirement to speak English to a certain standard could amount to indirect race discrimination under the Equality Act if it cannot be shown to be a proportionate means of achieving a legitimate aim. It will be important for the employer to be able to demonstrate that the standard has been set at a level that is reasonable in the circumstances.
Where an employee’s difficulties in meeting the standard arise from a disability, the employer will need to consider whether reasonable adjustments need to be made. The code suggests that for a worker whose first language is a signed language, the fluency duty could be met by the provision of a sign language interpreter.
Public authorities will also need to be mindful of the possibility of malicious complaints being made about a worker’s English. The code makes clear that such complaints should be rejected.
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