What should an employer do if an employee does not meet the standard required under 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). If an employee does not meet the standard judged as necessary by the employer for a particular role, it should take action to support the employee to improve their fluency, and ultimately may have to remove them from the role.
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 if staff in customer-facing roles are found not to demonstrate the required level of fluency, the employer should first consider providing training and give them a reasonable period of time to meet the necessary standard. As well as traditional language classes, the code recommends that employers consider providing access to, for example, mobile language apps, online resources and one-to-one support from someone who understands the context of the particular role.
If the employee does not meet the necessary fluency standard, the code advises that the employer should consider making adjustments to the role to reduce the need for spoken communication with the public, or redeploying the employee to a non-customer-facing role.
Dismissal of an employee because they do not meet the standard required should be considered only as a last resort, where the employee has not been able to achieve the necessary improvement, having been given a reasonable opportunity to do so, and where the employer has explored all alternative options. The employer should follow its capability and/or disciplinary procedure and ensure that any dismissal is fair in the circumstances.