How can an employer avoid discrimination when applying the English language requirement for public-sector workers?
Under part 7 of the Immigration Act 2016, public authorities are required to ensure that each person who works for them in a customer-facing role speaks fluent English (or Welsh, in Wales). The Act requires authorities to have a procedure in place to allow members of the public to make a complaint if they think that the authority is not complying with the duty. Public-sector employers should be aware of the risk of race or disability discrimination when enforcing the fluency requirement and when dealing with complaints about the fluency of employees.
Public authorities must have regard to the statutory Code of practice on the English language requirements for public-sector workers when deciding how to enforce the fluency requirement. The code states that all job applicants and workers should be treated in the same way, regardless of nationality or ethnic origin. It states that authorities should make clear in their complaints procedure that complaints about a staff member's accent, dialect, manner or tone of communication, origin or nationality will not be considered a legitimate complaint.
On the face of it, the requirement to speak fluent English or Welsh places employees of nationalities or origins that do not have English or Welsh as a first language at a disadvantage. Therefore, to defend claims of indirect race discrimination, employers may be required to justify their implementation of the duty, for example by being able to demonstrate that the fluency standard applied is no higher than necessary for the particular role, and giving employees reasonable support to attain the standard.
Employers must continue to comply with their duty to make reasonable adjustments in relation to employees or job applicants with disabilities that affect their verbal communication. The fluency duty will be met if a worker communicates through a sign language interpreter who speaks English or Welsh to the necessary standard for the role.
Public-sector employers will need to balance compliance with the language requirement with the need to avoid unlawful discrimination. They must also have regard to the need to eliminate discrimination and advance equal opportunities under the public sector equality duty.