I wrote recently about a Coroner’s case that involved the death of an elderly resident in a care home. 

In that case, the Coroner made findings that the level of spoken English of the carers who reported the accident contributed towards the tragic outcome. They warned the Government that ‘deaths will continue’ if the language requirements for overseas staff were not enhanced.  

The Home Office has, however, announced that it will not be updating the English language requirements for visas, for overseas workers. 

Whilst many, in light of this case, would question the Government’s decision, It is worth mentioning that some of the circumstances in that case were extreme. 

• One of the care workers concerned had allegedly not passed the English test necessary for a Visa and so should not have been working in the first instance. 
• Another did not know the difference between ‘bleeding’ and ‘breathing’ and ‘alert’ and ‘alive’ – grave concern was expressed about this individual being allowed to work in those circumstances. 

How do providers manage the risk?

From a regulatory and risk point of view, a provider would be expected to prevent someone who it considers to have very poor English (which might be evidenced for example by failing the required test) from being in a front-line or care delivery role. In that context, employing an individual in such a role could have very significant consequences – this is not just about calling 999, but also seeking consent, and receiving instructions about moving and handling etc. 

On an assessment of risk, the provider must be satisfied that the care worker’s English proficiency is sufficient to ensure safe and effective care. If not, they should not be permitted to work unsupervised in a frontline or care delivery role. Those in front-line roles need to be in a position where they can call 999 if needed, and there is no demarcation that can be made as to who doesn’t need to do this (particularly in homecare). With staff shortages, sicknesses and other pressures, it would be very risky to rely on ‘999 phoners’ to always be available or indeed to not be the ones that need the emergency services in the first place. 

What practical steps can providers take?

• Providers would want to ensure there is very clear training to staff on what is expected when calling an ambulance and perhaps role plays to ensure they understand and can apply that learning. 
• Providers could have a sheet of key pointers to cover on the phone, such as name, age, health conditions etc. 
• Providers often have a ‘grab bag’ and ‘grab sheet’ care workers can provide to paramedics that include all relevant info they might need, such as details of their medications etc. 

Are there any discrimination issues?

In my last blog, I wrote about how from an employment law perspective, imposing an English language requirement might be seen as indirectly discriminatory to those whose first language is not English, unless the employer could show that this was a proportionate way to achieve a legitimate aim. Certainly, the importance of managing risk and ensuring compliance with regulatory requirements is likely to go a long way to establishing that such a requirement might be proportionate. However, we would advise against applying this as a blanket policy and that it is sensible to seek advice from us in the first instance. 

At Anthony Collins, we have both employment and regulatory lawyers who work closely with a whole range of social care providers and can offer a holistic service to those seeking advice on issues just like this one. Get in touch with us if you need support.