It was upsetting to read a story in The Times last week concerning a care home resident who died following an accident in the care home in which she lived. 

Coroner’s findings

At an inquest, the coroner found that a factor in the death was that the call to emergency services resulted in the accident being noted as a ‘category two response’, rather than a ‘category one’ (i.e. life-threatening injuries). This miscategorisation influenced how soon paramedics attended and occurred in some part because the staff on duty making the call did not speak English well enough to properly describe the circumstances of the accident and condition of the resident. It’s a finding that throws up some uncomfortable questions. 

Existing language requirements for overseas workers

To obtain a visa to work in the UK, overseas workers must pass the ‘Secure English Language Test’. The coroner’s opinion was that Level B1, the minimum level of English required, was ‘wholly insufficient’ for those working in the direct care and protection of vulnerable people. She called for a change so that overseas workers in those roles are ‘able to demonstrate a sufficient proficiency in English’ so they are able to request appropriate medical attention when required. 

Is this discriminatory?

Where does this sit in terms of the rights of those working in the sector? Could providers face discrimination claims if they selected workers based, amongst other things, on their ability to speak and understand English?  

In very simple terms, indirect discrimination takes place when an employer applies a requirement for all staff to follow a certain rule or policy (such as a requirement for a specific level of English language skills), and that requirement places certain groups and individuals within that group (so here, overseas workers) at a disadvantage, where the employer cannot legitimately justify the requirement. It is that justification which is key to any such requirement. 

The Equality and Human Rights Commission’s code of practice uses an example of a superstore which requires all its workers to have excellent spoken English. This might be a justifiable requirement for those in customer-facing roles. However, for workers based in the stock room, the requirement could be indirectly discriminatory in relation to race or disability as it is less likely to be objectively justified. 

Can a language requirement be lawful?

For providers worried about any language ‘barriers’ and the safety of their residents, the key is whether any language requirements are a proportionate way to achieve a legitimate aim. Showing a legitimate aim is often the easy part.  In this situation, it is clearly ensuring the safety of residents by ensuring prompt medical attention can be accessed in the event of an accident.  However, the harder part is establishing whether imposing certain language requirements is a proportionate way to achieve that aim.  

The key question to ask is;

Is there a less discriminatory way to achieve the objective?

• If the objective is to ensure accidents are reported correctly and promptly could all staff receive additional training? Could all staff be required to complete a quick checklist in the event of an emergency so it’s clear what category they are giving to the emergency services? 
• Do all staff need this level of English? Which staff would make the call to the emergency services – is a language requirement only necessary for those staff? 
• Could communication with emergency services be completed by text message to avoid any misunderstandings on the phone?
• What would be the additional cost of these measures and the relative chances of success e.g. would a checklist just slow down a response in an emergency situation? Is a text message a sufficient form of communication in emergency situations? Likewise, are all carers of whatever level needed to assess an emergency and so there is no useful demarcation to be done?

In light of the value of overseas workers in the care sector and the announcement of new measures to reduce net migration (see my colleague Katherine Sinclair’s blog here on the Government’s recent announcement) providers are in a tricky situation in terms of needing the overseas workers but also needing to keep residents safe. Our advice would be to avoid language requirements as far as possible and certainly, until you have considered any alternative approaches.   

Whilst the Coroner makes some valid points in the aftermath of this tragedy, we would guard against knee-jerk reactions. These situations are always fact specific so please do contact me or a member of the team if you would like fact-specific advice.