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Helena Rozman

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New requirement for public sector workers to speak fluent English

Effective November 21, 2016, public bodies in the UK will be under a duty to ensure that staff in customer-facing roles can speak fluent English (or, if in Wales, fluent Welsh). The purpose of this requirement is to ensure that relevant staff members have a command of spoken English that is sufficient to enable the effective performance of their role.

The new duty applies to both existing staff and new recruits of bodies that carry out functions of a public nature, including, but not limited to, the NHS, local governmental bodies, central government departments, state schools and public corporations.

The responsibility for ensuring that the relevant individuals meet the required level of fluency lies with the public authorities. Employers may decide to measure this formally (e.g., through testing) or informally (e.g., through a two-way conversation during the interview). The government has published a code of practice to help employers meet the correct standard. The code suggests that the level of fluency expected of the staff member will vary depending on:

  • The frequency of spoken communications with the public
  • The topic and length of the spoken interactions
  • Whether the communications are likely to include technical, profession-specific or specialist vocabulary
  • How significant the spoken interactions are to the delivery of service

We encourage all public authorities to make existing staff aware of the new requirement and the consequences of failing to meet the necessary levels of spoken English. Where appropriate, employers may also wish to amend employment contracts to make performance of the relevant roles conditional upon the individual meeting the required standard of fluency. As a matter of best practice, employers should update recruitment processes so that job postings clearly set out the standard of English required for the particular role and adhere to that standard when assessing a candidate’s suitability for the position.

Where an existing staff member fails to meet the necessary threshold, we recommend that employers provide the necessary training and monitor the staff member’s progress. If an employer determines that there has not been sufficient improvement in the staff member’s spoken English within a reasonable period of time, the employer should try to identify whether there is a suitable alternative position available for that staff member or whether the staff member’s role can be modified so that it is not customer-facing. That said, employers should exercise caution before imposing any unilateral changes. Most important, employers should only consider dismissal as a last resort, and we recommend that any employer considering this option seek legal advice first.

In line with this new requirement, employers must set up a complaint procedure that members of the public will be able to use to express dissatisfaction about a staff member’s English-speaking skills. Maintaining necessary levels of fluency will therefore serve to protect an employer’s reputation for customer service by limiting the number of complaints it receives.

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New requirement for public sector workers to speak fluent English

Dual nationality may be an option for Brits who live or work in the EU

 

The German vice chancellor has called on certain EU countries (including Italy and France) to offer young British citizens who live or work in those countries the opportunity to apply for dual nationality. This follows the speculation and confusion after the UK referendum to leave the European Union. This would allow those British citizens a chance to remain EU citizens.

Some countries (EU and otherwise) permit dual nationality, sometimes under limited circumstances, while others do not. France allows naturalization without renouncing foreign citizenship, as does Italy. The UK, US and Germany, on the other hand, generally does not and only fairly recent created an exception that requires German citizens to apply for a waiver before naturalizing in another country.

Recent opinion polls showed that more than 70 percent of UK young citizens voted to remain in the EU and there is increasing concern from UK citizens about their long-term status in other EU countries. Many fear the UK’s exit from the EU will remove the existing free movement of people, or make this ability limited with excessively burdensome and restrictive procedures. Therefore, it is likely that many Britons will want to explore this alternative and hold on to the opportunity to live and work in the other 27 countries that form the EU.

Residents of Germany can apply for citizenship after eights years on the condition that they pass a German language skills test and a naturalization assessment (among other things). Further, German law requires non-EU citizens to give up their existing nationality when applying for German citizenship. However, the German ministry has suggested that it would like to allow British individuals to hold on to their UK citizenship even if they apply for naturalization after the UK subsequently leaves the EU.

For all of the positive aspects of dual nationality giving the right to live and work in an EU country, it is worth pointing out that there are obligations that may accompany taking on another country’s citizenship. Some EU countries have mandatory military service that would probably be more likely to impact the “young” Brits. And while tangential to the topic of dual citizenship, it should be noted that many EU countries have exit taxes on unrealized capital gains that might be imposed if an individual changes their residence for tax purposes or moves taxable assets from one country to another.

For now, while leaders negotiate the exit strategy, the UK remains part of the EU and British citizens still have full rights to work or study in other EU countries. Only time will tell whether they will continue to have this opportunity in the post-Brexit world.

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Dual nationality may be an option for Brits who live or work in the EU

New UK penalties for unauthorized foreign workers and their employers starting July 12, 2016

Effective today, July 12, 2016, employers found guilty of “knowingly” employing unauthorized foreign workers in the UK may face an increased prison term, and unauthorized foreign workers will be subject to criminal liability. This results from provisions of the Immigration Act 2016 which are aimed at further deterring workers who do not have the legal right to work in the UK from entering the nation. Provisions of the Immigration Act 2016, which take effect today, are slated to be implemented in stages over the coming months and while Brexit will certainly have implications for UK immigration law in the long-term, in the short-term our concern is with the provisions that begin to take effect today, which are as follows:

There will be an increase in the criminal penalties that may be applied to employers who employ illegal workers.

  • It is already a crime to knowingly employ an illegal worker, the penalty for which has been a fine of up to £20,000 and a prison term of up to two years. While the level of the fine remains the same under the 2016 Act, the maximum sentence upon conviction has been increased to five years in prison from the current two. In addition, experience has shown that proving that an employer knew that an employee was working illegally can be difficult. Therefore, beginning today an employer will be guilty of this criminal offence if the employer has reasonable cause to believe that an employee was working illegally. It is no longer necessary to prove that the employer actually knew this; only that he should have known it in view of the circumstances.

Illegal working will become a criminal offence.

  • Prior to today, the sanction applicable for employees guilty of working illegally is deportation, and a record of the illegality became part of the person’s immigration file. From today, working illegally will be a criminal offence subject to a sanction of up to six months in prison and/or a potentially unlimited fine. As working illegally is now a crime, any proceeds from working illegally also be subject to seizure as proceeds of crime. This provision has caused particular concern among certain human rights groups who have argued that it may lead to illegal workers feeling unable to speak out against exploitation for fear of themselves being criminally charged.

While UK employers should already be undertaking appropriate right-to-work checks, the stricter provisions that take effect today should serve as a reminder to make sure that current right-to-work checking processes are as robust as they can be.

The ever-changing landscape of UK immigration law has never been more fluid or uncertain than it will be over the coming months. We will keep you updated as matters develop.

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New UK penalties for unauthorized foreign workers and their employers starting July 12, 2016