On 21 November 2016 the government introduced a new Code of Practice. This is a statutory requirement which specifies that all public sector workers in a ‘customer facing’ role must be able to speak English fluently.
Does this apply to schools and academies?
The duty applies to all bodies which carry out functions of a public nature, applying to both state-funded schools and academies, given the four factors to take into account when considering if an organisation carries out functions of a public nature.
Which staff are affected?
The duty applies in respect of employees and also agency staff, self-employed contractors and apprentices. Existing employees are covered, as well as new recruits. As teachers in local authority maintained schools are already subject to a language standard (through annual appraisal against the Teacher Standards), teachers are unaffected by the new code and no higher standard will be required.
Given the nature of work in schools, a lot of other roles would fall under this remit including: reception staff, teaching assistants, lunchtime organisers, learning mentors, and other roles depending on their duties and interactions with parents and the public.
What is fluency?
The Code states that fluency relates to an individual’s ability to speak with confidence and accuracy, using accurate sentence structures and vocabulary, all without hesitation and appropriate to the situation at hand.
The Government’s Code of Practice (which forms part of the Immigration Act 2016), identifies different levels of fluency. It is important that schools apply a minimum threshold level for all customer-facing workers. For those posts where a greater level of fluency and interaction is required, it is recommended that a higher threshold level is applied.
Schools must satisfy themselves that customer-facing staff speak fluent English. This could be through a formal test, or the individual may demonstrate fluency through conversation during the interview process, or existing employees may have already proven themselves in the job. The tests set out by the code clearly involve many judgement calls about a school’s roles and therefore provide scope for challenge by employees and unions if they believe the criteria have not been applied fairly and equitably. NASUWT has concerns about the impact that this new duty could have on school staff and are voicing these with the government.
What do schools and academies need to do?
Firstly, consideration will need to be given as to how fluency will be assessed in your educational establishment. In particular, how will you require candidates to demonstrate fluency during the recruitment/interview process? Will you ask candidates to take a test or adopt a less formal approach?
Recruitment practices will need to be adapted to incorporate the new duty. Will those involved in recruitment be aware they need to specifically assess and record evidence of language skills? Job adverts should clearly state the standard of English (or Welsh) required for the role and schools must objectively measure candidates against that standard. It is important to ensure consistency across similar roles. It is also vital to ensure all applicants are treated in the same way, to avoid any breach of the Equality Act.
Obviously, existing staff in roles which the duty now applies to, need to be considered, especially if they might fall short of the required standard. Schools need to communicate to staff about the new standards and how this may affect them. The draft Code does not stipulate testing existing staff, but it is important that assessment processes are objective and fairly applied. One approach would be to use appraisals and build in some assessment of fluency into employee objectives. If schools feel current staff may not meet the criteria then we would recommend they seek advice from their HR service provider for expert assistance.
The Code says that you must operate a complaints procedure so that if a member of the public wants to complain about the lack of fluency it will be investigated and responded to as part of a formal process. This does not need to be a separate stand-alone policy, so the existing school complaints policy/procedure will just need to be updated.