Human Resources - Discipline: police staff protocol L1200

1. Summary of changes

1.1 A slight amendment made to “A guide for investigating officers” link in paragraph 3.14.2, updated email address.

2. What this protocol is about

2.1 This discipline protocol is designed to promote structured employee relations as well as fairness and consistency in the treatment of Essex Police and Kent Police Staff. Public confidence in the police service depends upon all police staff demonstrating the highest standards of personal and professional conduct. All employees are expected to adhere to the police staff standards of professional behaviour as set out in the College of Policing Code of Ethics 2014, work in accordance with their contract of employment and abide by workplace rules.

2.2 The standards of professional behaviour reflect the expectations that Essex Police, Kent Police and the public have as to how police staff should behave. They are not intended to describe every situation but rather to set a framework which everyone can easily understand. They enable everybody to know what type of conduct is acceptable and what is unacceptable.

2.3 The standards set out do not restrict the discretion of police staff; rather they define the parameters of conduct within which that discretion should be exercised. A breach of these standards may damage confidence in Essex Police and/or Kent Police and could lead to disciplinary action, which in serious cases may result in dismissal. The public have the right to expect Essex Police and Kent Police to protect them by upholding the law and providing a professional service.

2.4 Police staff have the right to a working environment free of harassment, inequality or discrimination from others within the service and members of the public. Essex Police and Kent Police will proactively support such a working environment.

2.5 In addition to the standards of professional behaviour, Kent Police employees should refer to the Project Minerva booklet ‘Security matters’ which gives more detailed advice on how employees are expected to conduct themselves securely.

2.6 Employees should be aware that association with persons with criminal convictions, or those actively engaged in crime, other than as authorised during the proper course of duty, may be regarded as a threat to force security.

2.7 Those entrusted to supervise and manage others are role models for delivering a professional, impartial and effective policing service. They have a particular responsibility to maintain standards of professional behaviour by demonstrating strong leadership and by dealing with conduct which has fallen below these standards in an appropriate way, such as by management action or the formal disciplinary process; above all else managers should lead by example.

2.8 In carrying out their work in accordance with these standards, police staff have the right to receive the full support of Essex Police and Kent Police. It is recognised that the ability of police staff to carry out their work to the highest professional standards depends on the provision of appropriate training, pay and reward, equipment and management support.

2.9 Essex Police and Kent Police has a responsibility to keep police staff informed of changes to terms and conditions of employment, laws/legislation, local policies, and procedures also to provide training and familiarisation when such changes necessitate.

2.10 Police staff have a duty to keep themselves up to date on the basis of the information provided by the employer, as far as it relates to them personally. Where the standards of professional behaviour are being applied in any decision or disciplinary process, they shall be applied in a reasonable, transparent, objective and proportionate manner. Due regard shall be paid to the nature and circumstances of the individuals conduct, including whether their actions or omissions were reasonable at the time of the conduct under scrutiny.

2.11 The standards of professional behaviour and this discipline protocol gives examples to help police staff interpret the standards expected in a consistent way. They are not intended to be an exclusive, prescriptive or exhaustive list.  Where the disciplinary procedure is being used, it is important to identify the actual behaviour that is alleged to have fallen below the standard expected of an individual, with clear particulars and evidence describing that behaviour. It should be remembered that other procedures exist to deal with poor performance and issues of capability.

2.12 More information on the Code of Ethics is available from the College of Policing.

2.13 The principle aims of the discipline protocol are to:

• encourage and support employees to achieve and maintain the expected standards of conduct which in turn support the maintenance of public confidence in the police service. This protocol should not be viewed as a means to imposing a sanction or as necessarily leading to dismissal
• ensure fair and consistent treatment of all employees to whom the protocol is applied
• meet legislative requirements

Compliance with this policy and any linked procedure is mandatory for all officers, staff, special constables, volunteers and contractors. However, the Head of HR Operations may exercise discretion to consider reasonable exceptions to this protocol, on a case-by-case basis where clear rationale is provided.

3. Detail the protocol

3.1 This protocol applies to all police staff, except those within their probationary period of employment (see 3.2). It sets out the formal procedure for handling disciplinary cases. However, it is not a substitute for timely management intervention, advice or guidance which would provide a suitable remedy for low level misconduct. Matters that are dealt with in such a way will normally be recorded by way of a day book entry, meeting note or within a development plan. The provisions of this policy and attached guidance should not be departed from without good cause and should be administered in keeping with the principle of fairness and natural justice. 

3.1.1 At all stages of the protocol it is a requirement of all involved at any stage to raise and deal with issues promptly and not unreasonably delay meetings, the provision of information, decisions or the confirmation of those decisions.

3.1.2 Human Resources (HR) staff will maintain contact with both Professional Standards Department (PSD) and managers to ensure that cases are dealt with as expeditiously as possible and will escalate cases to the appropriate Senior Leadership Team (SLT) member where it is felt that insufficient progress is being made.

3.2 Employees on probation are expected to adhere to the police staff standards of professional behaviour at all times. Should disciplinary action become necessary, it may be appropriate to go straight to stage two or stage three of the discipline protocol.

3.3 Superintendents or police staff equivalents are authorised to dismiss staff on probation.

3.4 Managers are responsible for ensuring that this policy is applied fairly and consistently. Advice from the HR Business Centre may be sought in the first instance on the application and interpretation of this protocol.

3.5 A flowchart, outlining the stages of the disciplinary process, is available.

3.6 Other guidance that may be of use:

• holding a difficult conversation with staff/managers
• ACAS guidance - detailed guide on managing challenging conversations
• ACAS guidance - quick reference guide on managing challenging conversations

3.7 Kent only - Private Finance Initiative (PFI) providers are responsible for undertaking any disciplinary action that is required in respect of a member of their staff, however, the PFI providers will take into account any evidence provided by Kent Police in respect of an alleged incident and the implications of such matters if proven, will also take into account any recommendations made by Kent Police in respect of sanctions. Where the allegations are of a criminal nature Kent Police will be required to carry out an investigation.

3.8 For the purpose of this protocol the term "working days" will refer to Monday to Friday in all cases including where police staff work a shift pattern outside these days.

3.9 No disciplinary action will be taken against any employee in respect of alleged misconduct arising from their duty as a Trade Union Official. Where disciplinary action is considered against a recognised Trade Union Official, the Head of Operational HR or Head of Human Resources (HR) (or their representative) and the superintendent Professional Standards department (PSD) (or their representative) must be informed immediately and no action should be taken unless the circumstances have been discussed with a full time official of the Trade Union concerned.

3.10    Criminal investigations

3.10.1 There may be occasions when a matter that is the subject of a criminal investigation may also be investigated under the police staff disciplinary process. In normal circumstances the criminal investigation should not prevent the application of this protocol or the investigating officer from conducting a thorough investigation. Each case will be considered on its merits and human resources and professional standards department will determine whether it is appropriate to progress with a disciplinary investigation before the outcome of the criminal investigation is determined or whether the disciplinary investigation should be postponed pending the outcome of the criminal investigation. Consideration should be given to making alternative arrangements for individuals unable to attend the workplace.

3.11    Adverse judicial findings

3.11.1 An adverse judicial finding is a finding by a court, expressly or by inevitable inference that a police witness has knowingly, whether on oath or otherwise, misled the court; this includes both criminal and civil courts.

3.11.2 When the Professional Standards Department (PSD) is notified that a member of police staff is subject of an adverse judicial finding, consideration will be given to the commencement of a disciplinary investigation. The head of PSD will also notify the head of resourcing so that due consideration can be given to the impact of the adverse judicial finding on the individual’s role. At all times the decision-making process will be in accordance with the Human Rights Act, take into consideration any contractual obligations for members of police staff, and will be proportionate to the circumstances that prevail.

3.12    Absence through ill-health

3.12.1 Employees and any person that accompanies them are obliged to attend any meeting held during the investigation and then attend any formal disciplinary meeting/hearing arranged.

3.13    Non-attendance at a disciplinary meeting or hearing

3.13.1 The ACAS code of practice on disciplinary and grievance procedures states that both the employer and the employee should make every effort to attend the disciplinary meeting or hearing and that where an employee is unable or unwilling to attend without good cause, the employer should make a decision based on the evidence available about how to proceed. Therefore, the force should investigate the employee's reason for non-attendance, and it would be best practice to reschedule the meeting or hearing at least once before proceeding.

3.13.2 In the event that an employee knows in advance that they will be unable to attend a meeting or hearing they should take appropriate action to re-arrange to a mutually agreeable time, date and venue, providing this is fair, reasonable and does not unduly delay the progress of the case.

3.13.3 Employees are reminded of the importance of attending any interview, meeting or hearing and in the event that an employee fails to attend a rearranged meeting or hearing without good cause, the force may take a decision to progress the matter in their absence.

3.13.4 Factors that the force should consider when deciding what would be a reasonable course of action in relation to an employee who has previously failed to attend a disciplinary meeting or hearing include past precedent for non-attendance within the force; the employee's reason for non-attendance; the employee's disciplinary and work record, seniority and length or service; the severity of the disciplinary issue; and any medical opinion on the employee's ability to attend the meeting.

3.13.5 If it is reasonable to do so, for example where there is no good cause for the employee's absence, any written submissions from the employee, statements made by an appropriate representative and any other available evidence, should be taken account of before making a decision.

3.14    The formal discipline procedure

3.14.1 A flowchart outlining the stages of the disciplinary process is available.

3.14.1.1 The appropriate manager in consultation with HR and PSD, will determine how best to handle the allegations, including consideration of initial scoping. A decision to proceed with an initial scoping exercise can only be taken if agreed by HR and PSD.

3.14.1.2 For staff in collaborative roles any conduct issues will be dealt with pursuant to the relevant s22A Collaboration Agreement. 

3.14.1.3 If scoping is considered appropriate (having regard to the principles of proportionality, fairness, natural justice and the guidance), the manager should agree its scope and parameters with HR and PSD including whether it is necessary and appropriate to discuss the allegation with the employee concerned. At the conclusion of the scoping the manager shall complete a report (with HR support), detailing the outcome of the scoping and a recommendation as to how the allegation should be dealt with. In all cases the assessment as to how the allegation shall be handled, whether scoping has taken place or not, will remain with PSD as the final decision maker.

3.14.1.4 If at any stage of the process it is believed that the initial assessment should be altered the matter will be referred back to the superintendent PSD or other designated individual who will reassess the case and notify the HR representative of any changes to their assessment. The HR representative will, in turn, notify the employee as soon as reasonably practicable of the new assessment.

3.14.2 Should the matter be serious enough to justify more thorough consideration, an investigation into the circumstances of the allegation(s) must be conducted before any formal disciplinary meeting or hearing can be considered. An investigating officer will be appointed by the senior leadership team (SLT). The investigating officer will be required to dedicate the appropriate amount of time to the investigation. Wherever possible, the aim is to complete the entire process i.e. from start of investigation to any disciplinary outcome as expeditiously as possible. A guide for investigating officers gives advice and guidance on conducting an investigation. The investigating officer will usually attend any meeting/hearing to present the management case.

3.14.3 The employee should be informed at the earliest opportunity of the decision to commence an investigation including the following:

1. a) At least ten working days in advance provide:

• the time, date and location of any interview
• who the investigator is
• a description of the conduct that is the subject of the investigation and how this conduct is alleged to have breach the contract or to have fallen below the standards of professional behaviour
• where the discipline protocol is being applied, it is important to identify the actual behaviour, act or omission that is alleged to have breached the contract or else fallen below the standards expected of police staff, with clear particulars describing the behaviour, act or omission

a1) The investigating officer will disclose as much information as they consider appropriate in the circumstances to enable the employee to prepare for the interview. In making this consideration, the investigating officer should consider whether there are good reasons for withholding certain evidence obtained prior to the interview and if there are no such reasons then the police staff member should normally be provided with all relevant evidence obtained, together with any supporting evidence the investigator may wish to provide. This timescale may be shorter where the issues for consideration are not complex or in agreement with the employee and their trade union representative/workplace colleague;

1. b) the individual has the opportunity to respond in writing to the allegation if they so wish
2. c) their right to be accompanied by a workplace colleague or Trade Union official
3. d) at the end of this investigation it will be decided if, and to what level, disciplinary proceedings will be taken against them, at which point they will be informed
4. e) that an employee can appeal against a decision to impose any formal disciplinary sanction

3.14.4 At all stages the employee under investigation has the right to be represented by a workplace colleague, an official of a Trade Union as set out in s10 (3) of the Employment Relations Act 1999 or a representative of Unison if they are a member. Unison is well versed in the disciplinary protocol and should be viewed as being present to observe that the process operates fairly and within the rules.

3.14.5 Where an employee is not a member of Unison, they should contact human resources with any questions they may have about the process. This measure is intended to minimise any anxiety caused by lack of understanding of the disciplinary procedure. However, human resources will not represent the individual.

3.14.6 Upon completion of the investigation, the investigator will email their investigation report and all relevant documentation to the superintendent PSD or other designated individual. The superintendent PSD or other designated individual will review the investigation report provided by the investigating officer and with advice and guidance from a human resources representative (where required) will make a final assessment with regard to any further action necessary.

3.14.7 Where it is felt that, on balance, the matter should be dealt with by way of a misconduct meeting or a gross misconduct hearing, superintendent PSD or other designated individual will record a rationale for that decision and arrange, through HR, for the individual and their line manager/SLT to be notified accordingly.

3.14.7.1 It will be Human Resources responsibility for ensuring that the individual is notified accordingly and the local SLT’s responsibility for making all arrangements concerning the meeting/hearing, including the completion and issue of paperwork bundles, and the arrangements for the day including administration of the process; such as the date, time and location of the meeting and the panel members.

3.14.8 Where the final assessment is that there are no breaches of the standards of professional behaviour sufficiently serious to warrant formal disciplinary action, or which indicate that the employee has failed to work in accordance with their contract of employment or abide by workplace rules, there may be no further action or they may defer the matter to allow it to be dealt with by alternative means, such as practice requiring improvement (formerly management action) under L1100 Protocol – Capability: police staff.

3.15    Suspension

3.15.1 Suspension is not a form of disciplinary action and will be on full pay. Suspension should be for as brief a period of time as possible in the circumstances and will normally take place pending an investigation, where temporary deployment to alternative duties or location has been considered and where there are reasonable grounds:

• that an employee has committed an act which may reasonably be considered as gross misconduct (see 3.20)
• in other cases, falling short of gross misconduct, where the continuation of the employee at work would significantly affect the ability to investigate the alleged offence
• where the employee's continued presence at work might have an adverse effect on either themselves or other staff
• to preserve evidence or prevent evidence being altered/amended/deleted
• to protect the integrity of Essex or Kent police systems

3.15.2 A pro-forma is available to assist with the decision making.

3.15.3 An employee may be suspended on full pay at any stage of the procedure with the agreement of the DCC and superintendent PSD or other designated individual.

3.15.4 Employees must always be advised of their suspension in person i.e., face to face. Welfare support should be offered and an appropriate support regime should be in place. A welfare guide and a contact check list are available to assist managers to provide appropriate support to those subject to the discipline procedure. Written notification should be confirmed in writing within five working days. Suspension should be reviewed at least once per month to ensure that suspension is still appropriate; the individual will also be advised in writing of the outcome of the review. PSD will keep a full rationale of both the review and the outcome. Staff are expected to be available to the force for the purposes of the investigation at all times during the period of suspension. Any leave that has already been booked on SAP will be honoured. If there are any other dates during the period of the suspension on which the employee should seek permission from their line manager to have such dates recorded onto SAP as annual leave (or other leave category). If an employee wishes to cancel any leave already booked on SAP or take leave while suspended then they must ask their line manager, in advance of the leave period, to do this on their behalf and must ensure that they are available to the investigating officer or other force representative on these dates.

3.16    Disciplinary meeting/hearing

3.16.1 If the decision is made that there is a case to answer, a disciplinary meeting/hearing will be arranged to consider the case. A meeting will be arranged for cases where the possible sanction will be no higher than a final written warning. A hearing will be arranged for more serious cases where the available sanctions include dismissal. The table below details the appropriate level/rank of those involved in the process. NB. Superintendents or appropriate police staff managers are authorised to dismiss staff on probation.

3.16.2 An appropriate HR representative will attend any hearing as a panel member; this will not be the same HR representative who has advised on the preceding process:

Potential sanction	Chair/panel	Appeal panel
Up to written warning (stage 1)	Line manager or other appropriate manager usually up to chief inspector or police staff equivalent and HR representative to advise	Next level of management up from the presiding officer, up to and including chief superintendent or head of department and HR representative
Up to final written warning (stage 2)	Manager at superintendent or police staff equivalent level and HR representative to advise	Next level of management up from the presiding officer, i.e. chief superintendent or head of department and HR representative
Up to dismissal and/or other sanction (stage 3)	Chief superintendent or police staff equivalent/head of department (Chair), chief inspector/police staff equivalent and appropriate HR representative	Chief officer level police officers or police staff equivalent and HR representative

3.16.3 The employee will be asked to attend a disciplinary meeting/hearing where they will have the right to be accompanied by a workplace colleague, an accredited official of a trade union or a representative of UNISON if they are a member.

3.16.4 Whenever practicable reasonable notice of the meeting/hearing will be given. For a disciplinary meeting, five working days' notice should be given. For a disciplinary hearing, 15 working days' notice should be given. If the accompanying workplace colleague or union representative is not available at the time chosen for the meeting and the employee gives an alternative date that is reasonable and within five working days of the original date, then the meeting must be postponed and re-arranged to that date.

3.16.5 Notification of the meeting/hearing will be given in writing. The notice will include:

• the nature and details of the allegation(s) to be considered; please see paragraph 3.14.3 for further details
• the right to be accompanied by a trade union representative or workplace colleague; there is no right to have a legal representative present
• the date, location and time of the meeting/hearing
• details of any witnesses to be called in support of the management case
• identification of who is on the panel and who is presenting the management case (the presenting officer)
• explanation that the employee can call witnesses or make written representations which must be submitted prior to the hearing (the letter will also specify the date that such must be notified/submitted by). In addition, signed statements must be submitted in advance for any person attending as a witness. Submissions outside the specified timescales will not be permitted, except in exceptional circumstances and at the discretion of the Panel Chair
• copies of the bundle of documents (prepared by the investigating officer and quality assured in consultation with HR) which will be considered at the meeting/hearing

3.16.6 Witness statements may be included in the bundle of documents and the employee will be advised of the names of any of the witnesses who are also being called to attend the meeting/hearing in support of the management case. The employee will be asked if they wish to submit any witness statements and if they intend to call any witnesses to attend the meeting/hearing in support of their case (any witness attending must have submitted a statement in advance of the meeting/hearing). It is the responsibility of the parties concerned to arrange for the attendance of their witnesses. Any witnesses should be central rather than peripheral to the case under consideration, and in particular, be able to provide an account regarding any matters under dispute. Character witness statements may also be submitted for consideration, but the author will not normally be required to attend a meeting/hearing. In some cases, it may be considered appropriate to include witness statements for consideration without the person having to attend the meeting/hearing; these will usually be for cases when the information provides some background details and these are not contested. It is also possible, typically in cases of bullying or harassment, for anonymous statements to be included; however these are likely to hold less weight in the decision making process if the employee who is the subject of the meeting/hearing does not have the opportunity to question the content. The Panel Chair may also need to consider reasons and motive for the request for anonymity to ensure against malicious or vexatious statements. The number of witnesses called should be limited to that necessary for fair consideration of the case and, if necessary, the Panel Chair has the final say on who may or may not need to attend.

3.16.7 Guidance is available for those called to attend as a witness.

3.17    Procedure to be followed at a disciplinary meeting/hearing

3.17.1 Meetings/hearings will be conducted in a manner that ensures both the presenting officer and the employee have an opportunity to set out and explain their cases. 

3.17.2 Meetings/hearings will be recorded electronically for the purpose of having a record of the matters discussed. Upon request the force will provide a copy of the recording on CD and, on an exceptional basis, a transcript of a passage or short portion that has been identified as problematic.

3.17.3 The Panel Chair will make the necessary introductions; explain the purpose of the meeting/hearing, read out the allegation(s) against the employee and the procedure to be followed.

3.17.4 Witnesses should not be present at the meeting/hearing before giving their evidence. Once they have finished giving their evidence they should leave the meeting/hearing and should not communicate with any other witnesses before or after giving their evidence.

3.17.5 The presenting officer will go through the management case, highlighting the key arguments for their case, calling and questioning any witnesses in support as necessary. The employee or their representative and the presiding officer will have the opportunity to question the presenting officer on their case and any witnesses that attend.

3.17.6 The employee or their representative will be asked to summarise the main points of their case, followed by a summary by the presenting officer. At this stage no new information may be introduced although any mitigation not previously highlighted may be put forward.

3.18    Outcome

3.18.1 The panel will consider the matter in private. In reaching a decision (disciplinary meeting judgement) as to whether the allegation(s) is proved or not the panel will consider if there is a reasonably held belief that the employee committed the act/omission in question.   

3.18.2 Occasionally, further clarification or information is required before a decision can be reached. On such occasions the hearing will be adjourned until the information is provided. In normal circumstances however the employee will be advised of the outcome on the same day as the meeting/hearing.

3.18.3 The employee will be notified of the decision, in writing, within five working days of the meeting/hearing being concluded.

3.19    Disciplinary measures

3.19.1 The range of disciplinary sanctions available to the panel at a meeting/hearing are as follows and depend on whether the case is one of misconduct or gross misconduct.

3.19.2 Case unfounded: if the panel considers that the case against the employee is unfounded they will inform the employee and confirm this in writing. All references to the matter will be removed from the personal file.

3.19.3 No formal sanction: in cases where it is determined that no warning is necessary it may be appropriate to issue a development plan to address any learning, developmental or behaviour matters that have arisen during the course of the investigation.

3.19.4 Written warning: if the misconduct is found proven, the employee will be given a written warning setting out the rationale for the outcome, expectations for the future and outlining the possibility of further disciplinary action if a further act of misconduct takes place within a 12 month period. A copy of the written warning and the panel's judgement will be held on the personal file for a period of 12 months.

3.19.5 Final written warning: in the event of further misconduct following a written warning or a more serious case of misconduct, a final written warning may be issued. The final written warning will set out the outcome of the meeting/hearing and outline the possibility of dismissal if a further act of misconduct takes place within an 18 month period. A copy of the final written warning and the panel's judgement will be held on the personal file for a period of 18 months.

3.19.6 Dismissal with notice: here previous warnings have been issued for matters of a similar nature an employee may be dismissed for a further act of misconduct. Such a dismissal will normally be with notice, or pay-in-lieu of notice, in accordance with contractual or legal requirements.

3.19.7 Summary dismissal (dismissal without notice): in general terms, Essex Police and Kent Police will not dismiss an employee for a first offence except in a case of gross misconduct. In cases of gross misconduct, summary dismissal, without notice or pay-in-lieu of notice may be imposed at the disciplinary hearing. In exceptional circumstances, summary dismissal could occur without a hearing although such occasions will be rare and cannot take place without the agreement of the head of human resources or head of operational HR (or their representative) in consultation with the superintendent PSD or their representative.

3.19.8 Other sanctions: there may be circumstances that warrant other sanctions. These include compulsory redeployment and downgrading with an appropriate adjustment to salary to match the grade of the new role. Such a sanction should be imposed in addition to a final written warning because it is issued as an alternative to dismissal and the consequences of further misconduct must be made clear; i.e. continued employment will be under consideration. The table below summarises the possible outcomes:

Outcome	Expiry of warning
No case to answer	Not applicable
Written warning	After 12 months
Final written warning	After 18 months
Dismissal*	Not applicable for dismissal

*and alternative sanctions as detailed under other sanctions above

3.20    Gross misconduct

3.20.1 The following acts may be regarded by Essex Police and Kent Police as examples of gross misconduct depending on the circumstances. The list is not exhaustive:

1. fraud and/or deliberate falsification of records or claims for personal gain
2. improperly using or attempting to use official position for own private advantage e.g. for financial gain or establishment of inappropriate relationships
3. all forms of harassment including bullying
4. serious acts of discrimination, whatever the form
5. serious cases of offensive language or behaviour towards others
6. serious breach of Data Protection Regulations, including the accessing of information, such as that held on computer systems, without authorisation
7. intentionally divulging confidential information
8. serious act of insubordination or failure to follow reasonable management instructions
9. unauthorised removal, misuse, abuse or deliberate damage to force property, including intellectual property or that of other members of Essex Police or Kent Police
10. criminal offences (within or outside the workplace) that have a significant impact on the individual's ability to carry out their role or have the potential to affect the reputation of either force
11. serious negligence, which causes unacceptable loss, damage or injury (or risk thereof) or which is likely to weaken the confidence of the public, or bring discredit, on Essex Police and/or Kent Police
12. assault, violence and/or fighting during working hours or in connection with Essex Police and/or Kent Police
13. incapability of satisfactory performance through alcohol or substance abuse
14. criminal acts of association with criminals
15. inappropriate use of the internet, intranet and/or email facilities
16. deliberate and/or serious breach of health and safety legislation
17. leaving the workplace without permission or reasonable excuse
18. unauthorised absence
19. serious disregard for the rules and instructions given by Essex Police or Kent Police
20. corruption or the involvement in bribery situations

3.21    Appeal

3.21.1 All employees have the right to appeal against any formal disciplinary sanction or alternative disciplinary measure taken within ten working days of receipt of written confirmation of the meeting/hearing.

3.21.2 Appeals must be in writing and state that facts and circumstances on which the individual will rely at the appeal hearing. Copies of any documentation they wish to include as part of their appeal must also be submitted.

3.21.3 Grounds for appeal will fall under one or more of the following categories:

1. that there was a serious breach of the protocol that should have been followed at the meeting/hearing or other unfairness (e.g. an inadequate investigation) which could have affected the finding or outcome
2. that there is critical new evidence that could not reasonably have been considered at the disciplinary meeting/hearing
3. that the finding or disciplinary sanction imposed was too harsh in the circumstances

3.21.4 Appeals will wherever possible be held within ten days of receipt of the grounds for appeal from the individual. The individual will be provided with five days’ notice of the appeal date, time and venue.

3.21.5 The appeal hearing will be chaired at the appropriate level as set out in the table paragraph 3.16.2. The Chair of the appeal meeting/hearing must not have been involved in any previous meeting/hearing in connection with this specific case.

3.21.6 The employee will be reminded in writing of their right to be accompanied by a trade union representative or workplace colleague. Where it is not possible for a trade union representative or workplace colleague to attend on the date notified, the individual may offer an alternative date. Providing that this is reasonable and within five days of the original date, the appeal must be held on that date.

3.22    Procedure at the appeal hearing

3.22.1 An appropriate Chair shall hear all appeals and their decision is final.

3.22.2 The appeal will take the form of a review and will not be a full rehearing of the case. It will focus on the grounds set out in the appeal letter submitted by the individual. The role of the appeal is to assess whether or not the investigation and disciplinary process was thorough and fair, whether it was reasonable to conclude, on the balance of probability, the allegation(s) was substantiated and/or that the discipline sanction was a proportionate and reasonable one in the circumstances.

3.22.3 It is not usual to have witnesses called by either party at an appeal hearing. It will normally only be in the event that new evidence is brought to light that the attendance of a witness to provide greater detail or clarity will be allowed.

3.22.4 At the hearing the individual, or their representative, shall set out the grounds for the appeal.

3.22.5 The Panel Chair from the original meeting/hearing will then be asked to make any comments or observations regarding the grounds for appeal.

3.22.6 The Appeal Chair will then have the opportunity to ask questions, seek clarification of any point and make comments.

3.22.7 The hearing will adjourn while the Appeal Panel considers the merits of the appeal in private.

3.22.8 The hearing will then be reconvened and the Appeal Chair will give the panel's decision. Having considered the appeal the Appeal chair may:

1. dismiss the appeal and endorse the disciplinary action taken
2. uphold the appeal in relation to the original finding and sanction. This will include the removal of the disciplinary record relating to the original finding and re-instate the employee if dismissed
3. uphold the appeal in relation to the sanction only and impose a reduced sanction

3.22.9 This decision will be final and will be confirmed in writing within five working days of the meeting or hearing.

3.22.10 In cases of appeal against dismissal the individual will neither be permitted to resume working nor will salary be reinstated until the matter has been decided. If the employee is subsequently reinstated salary will also be reinstated and backdated to the effective date of dismissal.

3.23    Retention of disciplinary records

3.23.1 Disciplinary warnings will expire in line with the timescales determined at the meeting/hearing providing that any necessary improvements in conduct have occurred and have been sustained and there has been no similar or other misconduct during the period. Occasionally, warnings may be extended where there has been a further act of misconduct but the decision made that the misconduct is not serious enough to progress to the next stage of the process.

3.23.2 When the warning has expired all reference will be removed from the employee's personal file.

3.23.3 There may be certain exceptional circumstances where, for example, the disciplinary matter relates to a criminal offence and the nature of the offence and the post undertaken by the employee mean that it would be necessary for an extended warning period to be applied. If this is so, the employee will be notified in writing when the warning is given.

3.23.4 The Policing and Crime Act 2017, schedule 8, Part 4A requires police forces nationally to notify the College of Policing (CoP) of any police officers, special constables, police staff including Volunteers, who have been dismissed for gross misconduct following a misconduct hearing (or special case hearing), as well as those who leave the service having a case to answer for gross misconduct prior to appearing before a misconduct hearing. This would include those who retire or resign. 

3.23.5 The CoP maintains a register of barred officers and staff. The purpose of the register is to ensure transparency and prevent those who have been dismissed for gross misconduct being employed within the police service, IPCC, PCC’s Office or HMIC. If an individual leaves the force whilst under investigation, this information will be provided to the college for inclusion on the police advisory list. The police advisory list does not bar a person from being appointed but is made available for vetting purposes. Should the individual seek employment with another policing body, who are under a duty to consult the list.

For information on references, please refer to L1900 Protocol – Provision of Employment References (section 3.7).

3.24    Advice in confidence

3.24.1 An employee and/or their representative may seek advice on processes and procedures in confidence at any stage of the disciplinary procedure from Human Resources.

3.25    Further guidance

3.25.1 Where a grievance or complaint for bullying/harassment is raised by an individual during the disciplinary process, the formal stage of the grievance or complaint investigation will be undertaken by an independent manager (to be selected by the LPA/division/department) and the two resulting investigations should, wherever possible, run simultaneously but independently.

3.25.2 In cases where the allegation is that the proposed action is, in itself, either discriminatory or the reason given by management is not the real reason for the proposed action, the grounds for the grievance should normally be considered as part of the management case. This may be during the investigation, as part of any formal hearing or at the appeal stage, depending on when the grievance is raised

4. Equality Impact Assessment (EIA)

4.1 This protocol has been assessed as having a low equality impact.

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 members of police 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 tribunal 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 Consultation has taken place with UNISON in Essex Police and Kent Police.

7. Monitoring and review

7.1 This protocol is due for formal review every year. In the interim period the protocol will be reviewed as necessary, particularly as a result of changes in legislation, best practice and other relevant guidance (such as ACAS).

8. Governing force policy

Related force policies or related procedures (Essex) / linked standard operating procedures (Kent)

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, e.g., legislation, Authorised Professional
Practice (APP), force forms, partnership agreements (if applicable)

9.1      Procedures

9.1.1 This protocol does not cover situations more appropriately dealt with under the following procedures:

• ill health capability - refer to L180 Protocol - attendance management
• unacceptable levels of performance due to incapability - refer to L1100 Protocol – Capability: police staff

9.2      Documents

9.2.1 This discipline protocol complies with the Advisory Conciliation and Arbitration Service (ACAS) Code of Practice.

9.2.2 Dismissal for conduct is potentially fair reason in accordance with section 98(2) Employment Rights Act 1996.

9.2.3 The right to be accompanied at a formal meeting or hearing is covered by section 10 Employment Relations Act 1999.