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

1.0 Summary of Changes

1.1. This protocol has been fully reviewed and updated, there has been amendments made throughout the document. Numbering has been updated to comply with additional and removal of paragraphs.

2.0 What this Protocol is about

2.1 This protocol applies to Police Constables within their probationary period. For Direct Entry Superintendents, Inspectors and Re-Joiner members, an adjusted process should be used in conjunction with Police Regulations and the determinations 2003.

2.2 The protocol aims to:
• Set out a framework to enable supervisors and line managers to act fairly and consistently in managing Probationary Constables with unsatisfactory attendance, performance or conduct;
• Provide guidance on managing these concerns for existing entry routes and new entry routes, including the Police Constable Degree Apprenticeship (PCDA), Degree Holder Entry Programme (DHEP), Police Constable Entry Programme (PCEP) and Police Now;
• Provide detail on how such issues should be dealt with in conjunction with Higher Education Institute (HEI) partners;
• Provide details of the range of action that may be taken whereby attendance, performance or conduct is a cause for concern.

2.3 Regulation 13 of the Police Regulations 2003 deals with the discharge of a police probationer. It states, “subject to the provisions of this regulation, during their period of probation in the force the services of a constable [DE Inspector, DE Superintendent or Re-Joiner member] may be dispensed with at any time if the Chief Officer considers that they are not fitted, physically or mentally, to perform the duties of their office, or that they are not likely to become an efficient or well conducted constable [DE Inspector, DE Superintendent or Re-Joiner member]”.

2.4 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 (S of PB), reference should be made to The Police (Conduct) Regulations 2020, the Police (Complaints & Misconduct) Regulations 2020 and the Home Office Guidance on Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures 2020.

2.5 It is important that the correct process is followed for all cases that are being considered for Regulation 13 discharge, in most cases this would start with the informal process. There may be cases that are addressed informally by appropriate management interventions and where there is still unsatisfactory improvement, it is appropriate to refer the case for consideration to the stage one formal meeting, without progressing through the full informal stage.

2.6 This protocol will create this consistency in approach. Each case is considered on its own merit to determine the most appropriate action. This approach will enable a fair process and ensure that each Force meets their equality obligations.

Compliance with this protocol and any governing policy is mandatory. This protocol is not, nor is it intended to be, contractual. However, the Head of Learning and Development or appropriate SLT member may exercise discretion to consider reasonable exceptions to this protocol, on a case-by-case basis where clear rationale is provided.

3.0 Detail the Protocol

3.1 It is recognised that probationer constables will be undertaking one of the following: the Police Constable Entry Programme (PCEP), the Police Constable Degree Apprenticeship (PCDA) or the Degree Holder Entry Programme (DHEP). The PCDA and DHEP programmes are delivered in conjunction with our Higher Education Institute (HEI) Provider. This protocol incorporates the Regulation 13 process within all routes to becoming a fully competent Police Constable. Where officers are part of the PCDA or DHEP qualifications, Tutors / Staff from the HEI Provider may be required to provide evidence for the Regulation 13 process, in conjunction with an individual from the respective Force.

3.1.1 All Probationary Constables are required to comply with the Code of Ethics (C of E) and Standards of Professional Behaviour (S of PB) and the Competency and Values Framework.

3.1.2 The PCDA and DHEP programmes are integrated programmes and performance includes the successful achievement of academic objectives as well as operational learning. This protocol should be read in conjunction with programme information to ensure that expectations are fully understood.

3.1.3 Probationary Constables that joined under PCDA and DHEP routes are expected to have completed the knowledge and operational competencies in line with the relevant programme assessment criteria. All evidence will be assessed and verified in compliance with the relevant Assessment Centre.

3.1.4 Probationary periods may differ depending on the entry route: PCDA Officers have a probationary period of three years, DHEP and PCEP Officers have a probationary period of two years. Probationary periods for DE Superintendents and DE Inspectors is two years, and the probationary period for Re-Joiners will depend on the length of the break in service before re-joining.

3.1.5 It is the responsibility of all officers, staff and HEI representatives involved in the development and supervision of Probationary Constables (and DE Superintendents, DR Inspectors and Re-Joiners) to identify concerns with their attendance, performance and / or conduct and overall progress, as soon as possible. Support should be offered at the earliest possible stage to enable to the officer to reach the required standard.

3.1.6 During an officer’s probationary period, where the performance of a probationary constable is considered unsatisfactory after receiving support from the respective Force (and HEI if appropriate) this will be managed under the Regulation 13 process. It is the responsibility of the line manager to support the officer at each stage of the process.

3.1.7 Officers who are unable to meet the requirements of their entry programme will be assessed to transfer between entry routes, where appropriate, on a case by case basis.

3.2 Conduct

3.2.1 Paragraphs 4.87 to 4.89 of the Home Office Guidance on Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures 2020 states:
“The chief officer has discretion whether to use the disciplinary 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.
Particular consideration should be given to allegations of gross misconduct which ordinarily should be subject to disciplinary proceedings rather than the Regulation 13 route. However, where allegations of misconduct (rather than gross misconduct) are made, the chief officer may instead consider whether the circumstances of the matter merit consideration under Regulation 13 rather than under misconduct procedures. 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.”

3.2.2 Reference should also be made to the case of Kay (R, on application of) v Chief Constable of Northumbria Police [2010] EWHC 31 (Admin). Paragraph 38 of the judgement states: “the test for determining if a case against a probationary police officer should be determined under Regulation 13 or under the Conduct Regulations is whether there is such conflict over the facts relating to the misconduct relied on with the consequence that it would be unfair for the Chief Constable to make the judgement he did on the basis of the undisputed primary facts rather than giving the probationary police officer the protection to which he or she was entitled under the Conduct Regulations.”

3.2.3 The Head of Professional Standards or designated deputy must be consulted in relation to any case where the discharge of a police probationer is being considered in relation to misconduct and they would determine a view of the allegations and establish next steps.

3.2.4 Where the Head of Professional Standards or designated deputy has determined that the matter reaches the conduct threshold and to use Regulation 13, the formal process should be followed, holding a first meeting as set out below. 3.2.5 Where the Head of Professional Standards or designated deputy has determined that the matter does not reach the conduct threshold, but it is recommended that Regulation 13 is used, the formal process should be followed, holding a first meeting as set out below. The Chair of the meeting may determine that an action plan and review period is appropriate, or they may decide to refer the Probationary Constable to the Chief Constable for a Regulation 13 Discharge.

3.3 Regulation 12 of the Police (Amendment) Regulations 2003

3.3.1 Regulation 12 of the Police (Amendment) Regulations 2003 provides that the Chief Officer may extend a Student Officer’s probationary period as they determine in the individual circumstances of the case. Therefore, where performance, attendance or conduct issues have been identified which may be addressed under Regulation 13 of the Police Regulations (where appropriate) additional time may be necessary to achieve the required standard and allow time for procedural matters to be progressed.

3.3.2 The line manager will need to submit a report via the L & D Inspector (or PSE equivalent) for consideration of an extension of the officer’s probationary period setting out the expected timescale for the required improvement to be achieved.

3.3.3 The decision by a Chief Officer to extend a probationary period may be delegated to the Chief Superintendent, Head of L & D or designated deputy in their absence. Any requests for an extension would need to be properly set out with the appropriate rationale and would need to be submitted, approved and confirmed in writing to the officer, before the end of the relevant probationary period.

3.4 Informal stage

3.4.1 Unsatisfactory attendance and performance matters are managed by the line manager on LPA / Division / L & D and conduct matters will be agreed in conjunction with PSD.

3.4.2 Where a line manager or Tutor identifies that a Probationary Constable is not making satisfactory progress, this should be dealt with as soon as the concerns arise. It may be appropriate to manage this by providing verbal feedback initially, giving the agreed support and advice.3.4.3 It may be appropriate to address concerns by giving the officer a supportive development plan or in the case of attendance concerns, an Attendance Support Meeting (ASM), setting out what improvement is required, the timescales to achieve this and what support will be provided during the supportive plan. PIU will provide support and advice to the line manager.

3.4.4 Once all supportive measures have been put in place and reviewed and there is insufficient progress and / or the requirements of an informal supportive plan have not been met, then the line manager will prepare a summary report and supporting documentation for consideration by the L & D Inspector (or PSE equivalent) to progress the case to the formal stage. PIU advice will also be sought.

3.4.5 If supported by the L & D Inspector (or PSE equivalent), a summary of the case is submitted to: SLT LPA / Division and L & D SLT for review to consider whether the case is suitable to proceed with the formal Regulation 13 process. Advice may be sought from a HR Representative.

3.4.6 If it is considered that the officer should be offered further support before proceeding with the formal Regulation 13 process, or if further enquiries are required, this will be fed back via L & D / LPA / Division SLT. A full rationale and audit of this decision will be retained.

3.4.7 Where a decision is made to proceed with the formal Regulation 13 process, the Probationary Constable will be served with a formal letter setting out the reasons for the meeting along with the disclosure pack detailing all of the evidence the Force will rely on at the meeting. The Probationary Constable will be encouraged to seek advice from a Police Federation Representative and / or workplace colleague. The Probationary Constable will be asked to submit a written response, within 15 working days, following the service of the disclosure pack. The meeting will take place no earlier than 5 working days after the 15 working day deadline.

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

3.5 Stage one – Formal Regulation 13 meeting

3.5.1 Following the decision to proceed to the formal process, the serving of the disclosure pack and the request for the Probationary Constable to provide a written response, L & D SLT will review all of the relevant information once the written response has been received. Advice may be sought from a HR Representative.

3.5.2 A meeting then will be arranged:
• The meeting will be chaired by a designated SLT member of L & D;
• A HR representative will attend to provide advice and support;
• The Probationary Constable will be notified in writing of the date of the meeting, this will be no earlier than 5 working days after the 15 working day deadline;
• The Probationary Constable will have already been served with disclosure of information to be used in the meeting and may have submitted a written response;
• They will be allowed to attend with a Police Federation representative or a workplace colleague;
• The LPA/Division or Department will be represented, where appropriate;
• The Chair will test the quality of the information presented by management and the Probationary Constable/ Police Federation representative.

3.5.3 At the meeting the procedure will be as follows:

• The Chair of the meeting will start the meeting, introducing those people present and will outline the reasons why the meeting has been arranged. They will also explain that the meeting will be recorded to ensure that there is an accurate record of the meeting that can be made available upon request. The Officer’s rights are also explained (the right to representation and the right to make their case).
• The L& D Inspector (or PSE Equivalent) will present the management case, detailing the performance and / or attendance / conduct issues and the supportive action taken.
• The Probationary Constable (or representative) will then be given the opportunity to respond and provide any additional information to that in the written response.
• The Chair of the meeting will ask questions or clarify information of anyone attending the meeting, to ensure that they have sufficient information to reach a decision. The HR Representative may also ask any questions to clarify any information.
• The presenting officer and the Probationary Constable (or representative) will sum up their respective positions at the end of the meeting.
• The meeting will be adjourned whilst the Chair decides what action is appropriate.
• The meeting will be reconvened for the Chair to give their decision.
• The outcome of the meeting will be confirmed in writing within 5 working days.

3.5.4 The possible outcomes of the first stage meeting are as follows:

• The Chair will make a decision that the information presented by management is of serious concern which requires 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;
• That an agreed supportive plan may benefit the Probationary Constable:
o The development plan / attendance plan will last a maximum of 8 weeks and will be presented to the Probationary Constable in writing (this may be issued for a longer timescale and a rationale for this will be provided);
o The Probationary Constable will also be notified in writing that if they fail to successfully complete the supportive plan their service will be at risk with immediate referral to a Regulation 13 Hearing with the Chief Constable.

3.5.5 When a supportive plan is issued, an L & D SLT member will review the progress made during the plan. If the plan is achieved, the Probationary Constable will receive a letter confirming the achievement of the plan and that they will no longer be managed under Regulation 13 and will continue in their probationary period.

3.5.6 If the plan is not achieved, a further meeting will be held at an appointed time within 10 working days on conclusion of the plan or as soon as practicable when this may not be achievable to discuss the progress made whilst on the plan. This meeting will be attended by the same persons as those who attended the stage one meeting . The purpose of the meeting will be to review whether the Probationary Constable achieved the objectives set within the plan or not and whether they have demonstrated the required improvement set out in the supportive plan.

3.5.7 Failure to achieve the supportive plan will result in one of two actions:
• Failure implies an immediate referral to the Chief Constable for consideration of Regulation 13 discharge;
• Failure, but where good progress has been made allows for an extension in the process.

3.6 Stage two - Formal Regulation 13 hearing

3.6.1 Once a Probationary Constable has been recommended for discharge under Regulation 13, the following process will apply:
• The Probationary Constable will be notified of the recommendation to discharge under Regulation 13 by the designated SLT member of L & D in writing.
• The Probationary Constable will be served with full disclosure of the information to be used in the Regulation 13 hearing.
• They will be advised to seek guidance from the Police Federation.
• The Probationary Constable will be asked to attend a Regulation 13 hearing with the Chief Constable (or DCC if delegated) with 10 working days’ notice. They have the right to be accompanied by a Police Federation Representative or a workplace colleague.
• Notice of this hearing will be given in writing. The Probationary 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.
• If the probationer constable does not wish to attend the Regulation 13 hearing, they will be asked to submit their written response. This will be considered alongside all of the documentation that will be reviewed by the Chief Constable (or DCC).

3.6.2 The Regulation 13 Hearing procedure will be as follows:
• The Chief Constable (or DCC) will chair the hearing and a HR Representative will be in attendance to advise them.
• The Chief Constable (or DCC) will state the reason for the hearing.
• The designated SLT member of L&D will present the management case.
• The Probationary Constable or their representative will present their case.
• Any witnesses presented by management or the probationer constable will be subject to questions from management, the Probationary Constable and the Chief Constable.
• On conclusion, management will summarise their case and the Probationary Constable or their representative will summarise their case. The Chief Constable (or DCC) will adjourn the hearing to consider the merits of the case.
• The hearing will be reconvened and the Chief Constable (or DCC) will give their decision. If the decision is to discharge, the opportunity to resign will be offered to the Probationary Constable.
• If the Probationary Constable’ is discharged or they take the opportunity to resign, they will receive one month’s notice or pay in lieu of notice.
• The Chief Constable (or DCC) will make their decision and confirm it in writing within 5 working days.

3.6.3 The possible outcomes of the stage two hearing are as follows:
• The Chief Constable (or DCC) will make a decision that the Probationary Constable 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 and will therefore discharge the Probationary Constable, giving them the opportunity to resign;
• The Chief Constable (or DCC) will make a decision that based on the information presented by the management, a supportive plan may benefit the Probationary Constable, it may also be necessary for an extension of probation to allow for the supportive plan to be completed and the Regulation 13 process to be concluded. The case will be referred back to the designated SLT member of L & D for review prior to any further Regulation 13 hearing;
• The Chief Constable (or DCC) may decide to consider the opportunity and assessment for an identified Police Staff role for the Probationary Constable, following the decision to discharge them. The Probationary Constable will be supported by L and D and HR in seeking a suitable Police Staff role. However, if a role is not secured during their notice period, the Probationary Constable’s service will end.

3.6.4 There is no right of appeal under the Regulations. Throughout the process there are robust checks and balances in place to ensure the Probationary Constable is given every opportunity to take advice from the Police Federation and support groups and to present their views.

4.0 Equality Impact Assessment

4.1 An Equality Impact Assessment has been carried out and shows the proposals in this protocol would have low 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.

5.0 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.

6.0 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
• PSD Superintendent Essex / Head of PSD Kent
• Essex Strategic Change Team
• Essex Policy
• Essex Risk
• Essex Diversity and Inclusion Team
• Health & Safety
• Head of Operational Change
• PSD D/Superintendent
• Superintendents Association
• Strategic Force Crime & Incident Registrar
• DPO/Temp Head of Info Management
• Head of Operational HR
• Essex Support Network Chairs and Vice Chairs
• Specials Command Essex
• Essex Diversity and Inclusion Team
• Head of Continuous Improvement
• Head of the Control Centre
• Essex Superintendents Association
• Essex CMC
• HR Partners,
• 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

7.0 Monitoring and Review

7.1 This protocol will be reviewed every 2 years by or on behalf of the owner.

8.0 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 – W 1000 Policy – Information Management.

8.3 Retention & Disposal of Records

8.3.1 Essex Police and Kent Police will hold data in accordance with our Records Review, Retention & Disposal Policy – W 1012 Procedure/SOP - Records Review, Retention and Disposal.

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