Human Resources - Discharge of probationer under Regulation 13 protocol (L1180)

1. Summary of changes

1.1 This protocol was reviewed in August 2022.  No amendments made other than owner and author details updated.

2. What this protocol is about

2.1 This protocol applies to police probationers and their supervisors, human resources and chief officers.

2.2 Regulation 13 of the Police Regulations 2003 deals with the discharge of a police probationer. Subject to Regulation 13(1) during his/her period of probation in the force the services of a constable may be dispensed with at any time if the chief constable considers that he/she is not fitted, physically or mentally, to perform the duties of his/her office, or that he/she is not likely to become an efficient or well conducted constable.

2.3 It should be noted that where the discharge of a probationer is being considered in relation to misconduct and an alleged breach of the Standards of Professional Behaviour (SofPB), reference should be made to The Police (Conduct) Regulations 2012, and Home Office guidance on Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures.

2.4 Paragraph 2.12 of that ‘guidance’ states:

“…The chief constable has discretion whether to use the misconduct procedures or the procedures set out at Regulation 13 of the Police Regulations 2003 (discharge of probationer) as the most appropriate means of dealing with a misconduct matter. In exercising this discretion due regard should be had to whether the student police officer admits to the conduct or not. Where the misconduct in question is not admitted by the student police officer then, in most, if not all cases the matter will fall to be determined under the misconduct procedures. If the Regulation 13 procedure is used, the student police officer should be given a fair hearing (i.e. an opportunity to comment and present mitigation) under that procedure.”

2.5 Reference should also be made to the case of; Kay (R, on application of) v chief constable of Northumbria Police [2010] EWHC 31 (Admin).

2.6 The Head of Professional Standards or designated deputy should be consulted in relation to any case where the discharge of a police probationer is being considered in relation to misconduct.

2.7 It is proposed that for the force to achieve consistency in the Regulation 13 process, it should reflect parity in the force’s dealings with its entire staff. Although the burden of proof and statutory obligations differ, the process of arriving to the decisions reached should have a consistency in their approach.

2.8 It is important to note that special reporting measures (as referred to below) is considered a process of last resort when Regulation 13 discharge is being considered or where there is conflict between management and probationer as to the probationer’s development.

2.9 This protocol will create this consistency in approach to all staff. It will allow any tribunal to be compliant with current employee legislation, allowing human rights audit ability and fairness of trial.

Compliance with this protocol and any governing policy is mandatory.  This protocol is not, nor is it intended to be, contractual.

3. Detail the protocol

3.1 The proposed process of identifying a constable who fits the criteria at 2.2 above and is therefore considered for discharge is based on a meeting where the decision to discharge is taken.

3.1.1 The standards of proof to be used at all meetings is the balance of probability, as with all conduct, performance and attendance matters.

3.2 It is proposed that for the force to achieve consistency in future Regulation 13 process, it should reflect a consistency in the way the force deals with its entire staff. Although the burden of proof and statutory obligations differ, the process of arriving to the decisions reached should have a consistency in their approach.

3.3 When the training school/college, or LPA/division, after having gone through their local development processes, where appropriate, identifies that a probationer constable is failing and is being considered for Regulation 13 discharge, they should commence the ‘special reporting measures’ process.

3.4 The instigation of this ‘special reporting measures’ process invites the following action.

3.4.1 A case conference on the failing probationer constable will be held:

• this conference will be chaired by Head of Learning and development (L&D) or deputy
• the constable will be notified in writing at least five working days prior to the date of the conference
• the constable will be served with disclosure of information to be used in the case conference
• the constable will be allowed to attend with a workplace colleague or Police Federation representative
• the LPA/division or department will be represented, where appropriate
• the Chair will test the quality of the information presented by management and the probationer/federation representative

3.4.2 The outcomes of the meeting can be as follows:

• the Chair will make a decision that the information presented by management meets the standard required for immediate referral to the chief constable
• the Chair will make a decision that the information presented by the management fails to meet the standard required for a Regulation 13 discharge, or
• that an agreed action at a force level may benefit the probationer constable; an action plan will be put into place
  • the action plan will last to a maximum of eight weeks and will be presented to the probationer constable in writing
  • the probationer constable will also be notified in writing that if they fail to successfully complete the action plan their service will be at risk

3.4.3 The case conference will reconvene at an appointed time within ten working days on conclusion of the action plan or as soon as practicable when this may not be achievable.

3.4.4 The successful achievement of the action plan results in the probationer constable coming off ‘special reporting measures’.

3.4.5 Failure to achieve the outcomes of the action plan will result in two actions:

1. a gross failure implies an immediate referral to the chief constable for consideration of Regulation 13 discharge
2. failure where good progress has been made allows for an extension in the process

3.4.6 Under normal circumstances only one extension is allowed and must be completed within the two-year probation period. Failure on extension implies direct referral the chief constable for consideration of Regulation 13 discharge.

3.5 Probationer constables should usually go on ‘special measures’ only as process of last resort. In principle the measures last eight weeks, which is a maximum of either one action plan, or, a total aggregation of a maximum of two action plans.

3.6 Moving to stage 3 discharge

3.6.1 The meeting will be chaired by the chief constable or the deputy chief constable, in their absence. Constable or in their absence, the deputy chief constable.

3.6.2 Once a probationer constable has been recommended for discharge under Regulation 13 ‘special measures’, the following Regulation 13 process will apply.

3.6.3 The probationer constable will be notified of the intention to discharge under Regulation 13 personally by the head of learning and development (L&D)/deputy and/or served written notification of the same.

3.6.3.1 The probationer constable will be served with full disclosure of the information to be used in the future Regulation 13 proceedings.

3.6.3.2 The probationer constable will be advised to seek guidance from the Police Federation or a friend.

3.6.3.3 The probationer constable will be asked to attend a Regulation 13 hearing with the chief constable with ten working days’ notice. He/she has the right to be accompanied by a workplace colleague or a Police Federation representative.

3.6.3.4 Notice of this hearing will be given in writing. The probationer constable must be informed that their service as a police officer is at risk and that they may be dismissed as a result of the hearing.

3.7  Regulation 13 hearing

3.7.1 The presiding panel at the hearing will consist of the chief constable and a human resource partner/advisor to advise them.

3.7.2 The chief constable will state the reason for the hearing.

3.7.3 The Head of Learning and Development or their representative will present the management case.

3.7.4 The probationer constable or their representative will present their case.

3.7.5 Any witnesses presented by management or the probationer constable will be subject to questions from management, the probationer constable and the chief constable.

3.7.6 On conclusion, management will summarise their case and the probationer constable theirs. The chief constable will retire or suspend the hearing to consider the merits of the case.

3.7.7 The hearing will be reconvened and the chief constable will give their decision. If the decision is to discharge, the opportunity to resign will be offered to the probationer constable.

3.8  Appeal

3.8.1 There is no opportunity for an in-force appeal.

4. Equality Impact Assessment (EIA)

4.1 An EIA has been carried out and shows the proposals in this protocol would have no potential or actual differential impact on grounds of age, sex, disability, race, religion or belief, marriage and civil partnership, sexual orientation, gender reassignment and pregnancy and maternity.

5. Risk assessment

5.1 There is no specific risk assessment or health and safety consideration thought relevant to the content of this protocol.

5.2 Officers and staff engaged within the process must remain aware that they must follow the protocol correctly otherwise the risk to the organisation of a possible employment could be raised. A failure to fully adopt the principles set out in this protocol could have a detrimental effect upon the reputation of the organisation.

6. Consultation

6.1 The following have been consulted during the formulation of this document:

• Essex Police College/Kent Police College
• Police Federation Essex/Kent
• Essex/Kent LPA/divisional chief superintendents
• Professional Services Department (PSD) superintendent Essex/Head of PSD Kent
• Essex Strategic Change Team
• Essex Policy/Risk
• Essex Superintendents Association
• Essex FCR
• Equality and Diversity Coordinator
• HR Partners
• Health and Safety
• Essex Support Networks
• Crime Reduction Unit (CRU)
• Kent Minority Ethnic Police Association
• Additional consultation has taken place with Essex LPA Chief Superintendents regarding the Head of L&D/Deputy chairing all case conferences

7. Monitoring and review

7.1 This protocol will be reviewed every two years by or on behalf of the owner.

8. Governing force policy

8.1 This HR protocol supports the overarching HR Policy L1.

8.2      Data security

8.2.1 Essex Police and Kent Police have measures in place to protect the security of your data in accordance with our Information Management policy.

8.3      Retention and disposal of records

8.3.1 Essex Police and Kent Police will hold data in accordance with our Records Review, Retention and Disposal policy.

8.3.2 We will only hold data for as long as necessary for the purposes for which we collected.

9. Other source documents

9.1 There are no other source documents.