Human Resources - Limited duties: Police Officers (L1550)
1. Summary of changes
1.1. An additional line has been created within section 2 in order to explain that this protocol is not, nor is it intended to be, contractual.
2. What this protocol is about
This protocol applies to Police Officers and will provide a joint statement of intent. The limited duties regulations are intended to enhance operational resilience and support police officers to be deployed to the full extent of their capabilities.
Compliance with this protocol and any governing policy is mandatory. This protocol is not, nor is it intended to be, contractual.
3. Detail of this protocol
3.1 Both Forces intend to implement these regulations in a clear, consistent, supportive and fair manner and in accordance with the National Guidance. For the sake of completeness and the avoidance of doubt the National Guidance is reproduced below and where necessary the Essex Police and Kent Police protocol is provided beneath the relevant paragraph in bold and italic text which is intended to supplement the guidance and where necessary clarify both Forces’ interpretation:
GUIDANCE TO SUPPORT CHANGES TO THE MANAGEMENT OF POLICE OFFICERS ON LIMITED DUTIES
Interim version 1.3 – 27 March 2015
Introduction Document aims and context
The aim of this guidance is to describe changes that are being introduced to the ways in which forces categorise and manage officers who are not fully deployable for a range of reasons, including changing the definitions. The relevant Regulations and Determinations are Regulations 22 and 28A, and Annex EE of the Determinations under Regulation 22.
The origins of these changes are in the Winsor Review: however, the Police Advisory Board of England and Wales has developed the current guidance. This guidance represents significant change from the original proposals.
This guidance is also designed to help forces deploy the individual capabilities of each officer to the fullest possible extent, commensurate with their role or rank and to support the overall operational resilience of each police force.
It is imperative that forces have regard to their statutory duties under equalities legislation.
Background and aims of change
Officers who are not fully deployable for medical reasons were in the past categorised as being on ‘restricted duties’. This definition encompassed a wide variety of officers, and it was often the case that no real distinction was drawn between those awaiting the outcome of misconduct investigations, officers who were not fully deployable on a short term basis or who were recuperating and those who needed to have long term restrictions on their deployment.
There are three new categories of limited duties. These are: • recuperative duties; • adjusted duties; and • management restricted duties.
Detailed definitions are set out at paragraph 29.
New definitions and a new process have been introduced with a view to:
modernising workforce management practices; • making the process fairer for officers; • enabling forces to better determine what resources they have available at any one time to meet operational demand; and • enabling forces to improve resilience by deploying officers in a more efficient way.
Operational resilience is the ability of a force to respond effectively and flexibly to the demands placed on it on a daily basis, whether that demand is local or national. In order to meet those demands in a way that makes the best use of resources, chief officers must be confident that they have officers that have the appropriate level of capabilities that are needed and that each officer is being deployed to the full extent of their capabilities.
In order to do this, it is essential that good quality information is maintained in relation to: a. the level of demand/operational requirement, including contingency for periods of exceptional demand and to meet statutory requirements under the Strategic Policing Requirement; b. the resources needed to meet that demand, including the number of fully deployable officers; and c. which officers are deployable, for what range of duties, at what times.
Data to allow the effective management of the Limited Duties arrangements will be maintained within the SAP system. The Business Centre currently update SAP, based on advice in the OH reports utilising a template form.
Forces need to understand the capabilities that are required for each police officer post and also, for those officers who are not fully deployable, to categorise the capabilities of each individual. Forces will then be able to match individual capability to the requirements of the post (as well as being capable an officer will also need to demonstrate that they are suitable in terms of skills and competence). This will ensure that any financial decision is justifiable.
Guidance about the transition to new arrangements for those officers currently classified by forces as being on restricted duties is at the end of Section 4 of this guidance on page 16 (see Paragraph 77 – 83 of this document).
Disability and reasonable adjustments
Police officers have been covered by the Disability Discrimination Act 1995 (now the Equality Act 2010) since October 2004. They are also covered by European legislation. Disability is one of the protected characteristics under the Equality Act 2010, which places a duty on employers to consider and make adjustments where reasonable. In some cases this may include retaining individuals where possible, with equal opportunity for career development. The law does not require employers to continue to employ people for whom adjustments cannot be made or where such adjustments that can be made are insufficiently effective. However, larger employers such as police forces would need to demonstrate that they have considered all reasonable adjustments in the context of the operational resilience.
As a matter of good management practice, forces should treat all those who request workplace adjustments in a constructive way. This may mean treating people as if they were disabled even if it is not clear whether or not they have a disability. The question of whether an individual has protected status under the Equality Act on grounds of disability is ultimately a matter for the courts to determine.
Officers with disabilities on recuperative and adjusted duties are protected under the same Act although not every officer with a disability will be on adjusted duties (for example, those with dyslexia or diabetes may be able to demonstrate the full range of capabilities required for a particular role).
Obligations under other legislation, such as the Health and Safety at Work Act 1974 may render it impossible to make a particular adjustment (for example, the authorisation of a firearms officer may be withdrawn on the grounds of his failing eyesight).
What constitutes a reasonable adjustment depends on the circumstances of each individual case, but case law indicates that it could include: a. posting a disabled officer to a post in the force matching their capabilities; b. creating a new post specifically for the disabled officer (but not if the post is unnecessary for the force);
requiring another officer to swap jobs with the disabled officer; 17. Accepting lower levels of output could also be considered a reasonable adjustment, depending on the circumstances of the force.
Forces should approach deployment in a creative way to enable the officer to be deployed in a way that is commensurate with their capabilities by removing barriers and disadvantages wherever it is reasonable to do so. For instance, it may be the case that a fully deployable officer occupies a role which does not make use of their individual capabilities. If there is a disabled officer with capabilities matching the requirements of that role, it may be appropriate to post them to that role and post the fully deployable officer to a frontline role instead.
Most officers will return to work and be able to carry out a full range of duties after a period of recuperation on full pay; often through the application of graduated return to work support or workplace adjustments to overcome barriers to carrying out such a role.
Where an officer is unable to make satisfactory progress against an agreed recuperative action/support plan it may be appropriate to invoke action under the Police (Performance) Regulations. However, it should be noted that Unsatisfactory Performance or Attendance processes (UPP) should be treated as wholly separate from other processes described in this guidance.
If an officer is not able to carry out even a limited range of duties to a degree that can be supported by the force, then ill-health retirement should be considered i.e. has a detrimental impact on the performance of the team, unit or force; or contributes to an inability to meet organisational/customer demand.
Where the officer is not considered suitable for ill-health retirement and their attendance is satisfactory but (even with appropriate workplace adjustments) they are able to carry out only a limited range of duties, the decision may be made to retain the officer on adjusted duties.
If, after a period of time on adjusted duties, during which enabling adjustments must have been fully explored, an officer is unable to return to full duties and the range of duties they are able to undertake is such that it has an impact on the operational resilience of the force, they may be retained at a reduced rate of pay that reflects this. Pay deductions should be viewed as a means of encouraging managers to focus on returning officers to full duties wherever possible, and limiting the use of adjusted duties whilst still retaining valued officers in police roles in a way that is fair to police staff and to fully deployable officers.
The application of chief officer discretion in relation to pay adjustment decisions is in no way intended as a substitute for consideration of whether a disabled officer would suffer a substantial disadvantage in comparison to a non-disabled officer as a result of a provision, criteria or practice put in place by the force.
Where officers on adjusted duties (or officers with a disability) are in roles they can discharge which the force subsequently dispenses with, the process for posting them to a new job should be followed.
Limited Duties Definitions
The following three categories of Limited Duties are defined in Police Regulations and determinations as follows:
“Recuperative Duties” is defined as duties falling short of full deployment, undertaken by a police officer following an injury, accident, illness or medical incident, during which the officer adapts to and prepares for a return to full duties and the full hours for which they are paid, and is assessed to determine whether he or she is capable of making such a return. Recuperative duties should be a structured, time-limited, supportive and rehabilitative process.
“Adjusted Duties” is defined as duties falling short of full deployment (as defined at paragraph 43), in respect of which workplace adjustments have been made to overcome barriers to working.
For an officer to be placed on adjusted duties, he/she must: a) Be attending work on a regular basis; b) Be working the full number of hours for which he/she is paid (in either a full time or part time role).
Whether Adjusted Duties is agreed in any individual case will depend on whether the individual is able, after any necessary reasonable workplace adjustments have been made, to discharge a substantive police role for the full duration of the hours for which he/she is paid; and whether such deployment can be accommodated without unreasonable detriment to overall force effectiveness or resilience, as judged by the chief officer. All reasonable efforts must be made to accommodate any disability the officer may have.
Once agreed, and subject to continued satisfactory performance in the role, adjusted duties arrangements could be long term, depending on the needs of the force and the officer, but will be subject to on-going review, with a management review being held on at least an annual basis or if there is a significant change in individual or organisational circumstances. The review will look at adjustments and their effectiveness at enabling the officer to continue in their police career.
For the avoidance of doubt, it is likely that some officers with disabilities (as defined under the Equality Act 2010) will be fully deployable (as defined at paragraph 43) and will therefore not be suitable for allocation to adjusted duties.
iii. “Management Restriction of Duties” is defined as duties to which an officer is allocated in circumstances in which:
a) Verifiable confidential or source sensitive information or intelligence has come to the notice of the force that questions the suitability of an officer to continue in his or her current post; and/or b) Serious concerns are raised which require management actions, both for the protection of individuals and the organisation; In either case also that: c) Criminal or misconduct proceedings are not warranted; and d) The Chief Constable has lost confidence in the officer continuing in their current role.
Where officers are not fully deployable in operational roles as a result of management decisions, both for the protection of individuals and Kent Police and Essex Police, they will be clearly recorded on SAP against the Management Restriction of Duties category of Limited Duties. In all other respects this protocol does not apply to these officers.
Recuperative and Adjusted Duties definitions therefore cover officers who are ill, injured, or have otherwise had appropriate restrictions to deployment applied for medical reasons. This guidance covers these officers.
Forces are reminded that any temporary limitations to officers’ capabilities arising from pregnancy or breastfeeding, insofar as there may be any, are not a matter for a prescriptive regulatory process, but for sensible management of human resource. For that reason, officers who are pregnant or breastfeeding are excluded from the scope of this guidance and the relevant legislation insofar as any limitations to their deployability are related to their pregnancy or breastfeeding.
In this guidance we define officers on management restricted duties, in order to specifically exclude them from the scope of this guidance.
“Recuperative Duties” is defined as:
“duties falling short of full deployment, undertaken by a police officer following an injury, accident, illness or medical incident, during which the officer adapts to and prepares for a return to full duties and the full hours for which they are paid, and is assessed to determine whether he or she is capable of making such a return. Recuperative duties should be a structured, time-limited, supportive, and rehabilitative process.”
In contrast to adjusted duties, when an officer is on recuperative duties they may be unable to fulfil a substantive role and may instead be on a temporary posting or attachment.
This guidance does not aim to set out in full the process for recuperation, but to give some context for the management of recuperative duties officers. Forces should have their own policies and procedures for the effective management of officers on recuperative duties.
Please refer to policy L180 Attendance Management, section 3.19 Recuperative and Restricted Duties.
A period of recuperative duties should normally last up to six months, although it is recognised that, in exceptional cases, it may be appropriate to extend the recuperation period up to a further six months (12 months in total).
Exceptional cases – examples of cases for which a period of recuperative duty may be extended for a further 6 months to a maximum of 12 months may be where an officer has returned to work following a serious or life threatening illness, injury or major surgery (e.g. open heart surgery or serious injury in the exercise of duties). These are non-prescriptive examples as all cases will be considered on an individual case by case basis.
This should provide sufficient time to consider the available options, including consideration and implementation of workplace adjustments, so that the officer’s position is resolved.
In every case, the officer should be informed from the start of the process of the range of possible outcomes of any action that is taken.
Resolution at the end of recuperative duties can include:
Return to full duties.
Where an officer is not medically capable of resuming their full hours, the officer may wish to request, as an adjustment, part time/flexible working so that she/he is paid only for the hours worked.
Ill-health retirement may be appropriate if the officer requests or the force makes a referral to the Selected Medical Practitioner (SMP) for consideration of permanent disability and the Police Pensions Authority decides that eligibility criteria are met.
Where officers fail to make adequate progress against an agreed recuperative support plan, it may be appropriate to invoke action under the Police (Performance) Regulations (UPP) that are currently in force i.e. this does not preclude the use of UPP at any other stage in the process – poor attendance or poor performance issues should always be dealt with promptly.
Alternatively, it may be appropriate to place the officer on Adjusted Duties.
Recuperative Duties – the current supportive arrangements for police officers to return to work following sickness, injury, accident or medical incident for a period of recuperative duties remain unchanged. This is a structured, time limited, supportive and rehabilitative process. Whilst both Forces will continue to monitor officers who have returned to work on less than full duties/hours in the short term i.e. up to 3 months, the regulations now permit periods of recuperative duties of up to 6 months before an assessment for Adjusted Duties is required. In exceptional cases this period of recuperative duties can be extended by a further 6 months to a maximum of 12 months.
Short term recuperative arrangements can be agreed between the line manager, the individual and their GP, in more complex or longer term cases i.e. those likely to extend beyond 28 days, Occupational Health will consider the circumstances and determine any necessary restrictions. In all cases the recuperative details will be recorded and monitored via SAP. It is a management function to review the need for recuperative duties. The Absence or Sickness Management Group will monitor and review all recuperative duties cases that extend beyond 28 days at monthly meetings and any decisions made will be informed by Occupational Health advice.
Adjusted Duties Allocation of Adjusted Duties Officers to Roles
Triggers for officers to be placed on adjusted duties are as follows:
Officer is unable to recover to full duties following a period of recuperation (see Annex A for further guidance)
Officer is unable to pass fitness test or Personal Safety Training and this brings to light an underlying medical condition that makes adjusted duties appropriate;
Medical review that comes about for some other reason.
It is for Chief Officers to define a process for allocating Adjusted Duties officers to suitable roles within the force. Placing an officer on adjusted duties represents an intention to retain an officer in the force in a substantive policing role that matches their individual capabilities, on the understanding that this may necessitate long term or permanent workplace adjustments. In doing so, forces should be guided by prevailing good practice, particularly around managing disability. This process must enable forces to balance their responsibilities under the Equalities Act with operational resilience requirements. Where forces can reasonably make adjustments, they must do so. This will require forces to be able to demonstrate a clear understanding of what capabilities are required in all roles in order for the force as a whole to fulfil its operational demands. Forces are also encouraged to use the Police Professional Framework (i.e. the Essex & Kent Police Competency Framework) and any local job description/person specification/capabilities assessment as a guide to the capabilities required for adequate performance in the role.
A review of all individual police officer roles has been undertaken to determine their suitability to accommodate officers on adjusted duties or not depending upon individual capability and operational requirements. The outcome of this review will be marked on the role requirements or job descriptions for use by managers and Occupational Health when assessing officers for suitable adjusted duties roles.
It is not proposed to take a prescriptive approach to how this should be done, although it is anticipated that the best approach will involve a force level process that is open, transparent and fair and which is based on the positive capabilities of individual officers rather than the things they are not able to do.
For an officer to be placed on adjusted duties, he/she must:
have returned to or be attending work on a regular basis;
be working the full number of hours for which he/she is paid (in either a full time or part time role).
It should be noted that the key considerations in decisions around the posting of officers on adjusted duties into appropriate roles are:
The workplace adjustments that could reasonably be accommodated including adjustments to the range of duties in order for the officer to be capable of performing the role in question. These could include, for example, adjustments to the officer’s duties, hours of work (i.e. the work pattern not the number of hours worked), the provision of special IT equipment or IT, adjustments to the work environment etc.
Whether it is reasonable for the force to make those adjustments to that role. This would include consideration of operational resilience issues alongside the capabilities of the individual such as: health and safety risk assessment, cost, impact of adjustments on colleagues and team/force performance, whether adjustments have been made for others etc.
The context of the totality of the police officer workforce, the number of vacancies available and the needs of disabled officers and officers returning from maternity leave as well as any other statutory duties which may apply.
A trial period (determined by the force) to assess whether the individual can fulfil the role with reasonable adjustments.
In some cases it may be appropriate for the proposed reasonable adjustments to be assessed for ‘workability’ by having a trial period. Where it is felt that it is appropriate for the Force and the officer to trial the adjusted duties arrangements this should normally be for 28 days and not more than 3 months. The start date of the trial period will be the trigger date for commencement of the Adjusted Duties posting.
Following this, officers may, as a reasonable adjustment, be posted to a role which they are medically capable of performing, but for which they do not have all the necessary skills or experience. In these circumstances, a reasonable period of retraining will be required (generally up to 6 months but it is up to each force to determine what is reasonable in each case).
A fully deployable officer will generally demonstrate all the following core capabilities:
the ability to sit for reasonable periods, to write, read, use the telephone and to use (or learn to use) IT;
the ability to run, walk reasonable distances, and stand for reasonable periods;
the ability to make decisions and report situations to others;
the ability to evaluate information and to record details;
the ability to exercise reasonable physical force in restraint and retention in custody;
the ability to understand, retain and explain facts and procedures;
the ability to work the full range of shifts (earlies, lates and nights).
The kinds of capabilities needed for a role vary and not all duties will need to be carried out in exactly the same way on all occasions by officers in the same roles. Officers who cannot demonstrate all the capabilities listed above may still be matched to a substantive police role. For instance, the ability to exercise physical force in restraint and retention in custody will rarely be a requirement for a role at superintending ranks. Although in this case, a superintendent may be on adjusted duties in recognition of the fact that they are not fully deployable (allowing forces to monitor availability of fully deployable officers), it is unlikely that a pay deduction could be justified.
The final decision to allocate an officer to adjusted duties should take account of medical advice, and professional advice may be needed to:
evaluate the appropriateness of adjustments /whether adjustments will help the officer overcome barriers to working in a substantive police role;
identify the potential impact of any restriction or limitation on others (this could include colleagues, teams or the public);
conduct a Health & Safety assessment;
determine the impact of adjustments on the force’s performance and workload;
assess the impact of the Equality Act 2010.
The officer should be fully involved in this process and will often be able to suggest ways in which barriers to working can be overcome given the fact that they are more likely to be familiar with their condition and the way in which it affects them individually.
If a difference of opinion arises between the member and the Force in relation to such medical advice to place a member on adjusted duties where the difference of opinion relates to whether or not the member is “fully deployable”, the chief officer or delegated authority shall, within 28 days of the difference of opinion coming to light, arrange for the member to be examined by a different registered medical practitioner, appointed or approved by the chief officer. The second doctor’s opinion will be final.
During the process of a second medical opinion being obtained the officer would not commence in the adjusted duties role.
The officer may then be placed on adjusted duties and new or further reasonable adjustments put in place, including a move to a more appropriate role where one is available. Where there are no adjustments that would be effective in enabling the officer to overcome barriers to meeting the relevant provision, criteria or practice of the force, or where adjustments cannot reasonably be made, ill-health retirement or UPP may be appropriate.
Adjusted Duties – the new category of Adjusted Duties replaces the previous Restricted Duties category. The regulations specify transitional arrangements for the assessment of officers currently on Restricted Duties against the new ‘limited duties’ definitions. It is also intended to apply these transitional arrangements to those officers coming towards the end of a period of 6 months or more on Recuperative Duties. All officers returning to work on less than full duties or hours with effect from 1 May 2015 will need to be considered against the ‘Limited Duties’ arrangements described in this protocol.
Decisions about placement on Adjusted Duties – where an officer has returned to work and is working the full number of hours for which they are paid but he or she still does not meet the core capabilities definition for a fully deployable officer, where possible, proposals for making reasonable workplace adjustments will be developed. If considered appropriate, these proposals to accommodate an officer on Adjusted Duties will be developed between the individual, Occupational Health and the individual’s line manager. The Divisional Commander or Head of Department will submit a report to Human Resources with recommendations in respect of this proposal. A meeting will be held to decide whether or not it is reasonable for the Force to make the adjustments to the role and if not, will consider and exhaust all other potential adjusted duties options.
If all potential adjusted duties options across the Force have been exhausted, the meeting will make recommendations for the officer to be considered against one of the other options detailed at paragraph 36 above i.e. part time or flexible working, ill health retirement or UPP.
Management of officers on adjusted duties
Having been placed on adjusted duties, adjustments should be monitored or altered as necessary to meet the needs of the officer and the force. If the officer’s condition suffers a significant deterioration during the course of the year, it may be appropriate to consider ill health retirement or UPP.
Officers will be assessed one year after being placed on adjusted duties, and on an annual basis thereafter, to determine:
whether he/she is able, after reasonable workplace adjustments have been made, to discharge a substantive police role for the full duration of the agreed hours for which he/she is paid; and
whether such deployment can be accommodated without unreasonable detriment to overall force resilience.
The assessment should constitute a formal management review, undertaken with the individual concerned, and may involve a referral to the force medical advisor(s).
Actions in advance of the 12 month review
After nine months on adjusted duties, the officer should be notified in writing that should she/he remain on adjusted duties following a 12 month management review, she/he may be subject to the loss of the deployability element of the X-factor payment (referred to as ‘X-factor’ through the rest of this document) i.e. continues to meet the criteria set out at paragraph 43.
This constitutes a deduction of pay to the value of:
8% of the pay to which the member is entitled as a constable. or For all other ranks: • 8% of the pay to which the member is entitled in his/her current rank , capped at 8% of the maximum of constables’ pay.
The officer should also be informed of all possible outcomes of the review. The officer will then be invited to make written representations to the appropriate authority (delegated as necessary).
Delegated to the Head of Human Resources for Kent Police & Essex Police.
The 12 Month Review
Once the officer reaches 12 months on adjusted duties, a formal management review should be undertaken with the individual concerned, with the purpose of assessing whether there has been a change in the individual’s medical circumstances, whether there need to be any changes made to the adjustments already put in place, and whether any such changes can reasonably be accommodated in that role. Such a review need not necessarily involve a referral to the force medical advisor(s). The outcome of that management review could be that:
the officer is considered for a return to full duties;
the officer is considered for ill-health retirement;
UPP may be considered if appropriate;
adjustments are no longer adequate, and further adjustments to the role are agreed to be reasonable and implemented;
some adjustments are no longer necessary and can be removed, and any necessary arrangements put in place to enable the officer to be more fully deployed;
business circumstances have changed, and existing adjustments can no longer be accommodated as reasonable, in which case the force would invoke its procedures for allocating the officer to a more appropriate role;
the officer remains in role with existing adjustments remaining in place.
Where the management review indicates it is appropriate, a further medical review may be initiated. It is advisable to obtain up to date medical advice before taking appropriate action, but this will be a decision for forces to make on a case by case basis.
Where the officer remains on adjusted duties and the Selected Medical Practitioner (SMP) is not considering the possibility of permanent disablement or permanent incapacity as appropriate, a further outcome of the review would be a recommendation as to whether the X-factor component of pay should be removed or not.
If an officer has been referred to the Selected Medical Practitioner in relation to consideration of ill-health retirement prior to or during the first 12 month review process, decisions about pay deductions shall not be made until the outcome of that referral is known i.e. the period from the date of written referral until the date the chief officer of police makes the decision to retain or retire the officer.
The 12 month Review – Once an officer has been classified as on adjusted duties for 12 months a formal management review will be undertaken. This will be a centrally managed process involving the individual, the line manager, SMT member, the HR Adviser, and if appropriate their Federation representative and/or updated advice from Occupational Health. The relevant SMT member will make recommendations to the Chief Officer/Head of People in respect of an outcome (i.e. options a-g in paragraph 55 above following this meeting.
On receipt of this recommendation, the chief officer of police, or delegated authority, will decide, on a case-by-case basis, whether or not an officer should sustain such a deduction from pay. All cases should be considered individually, taking into account the relevant facts and circumstances of each. The relevant senior officer or police staff equivalent must consider each case on its merits, having due regard to equalities legislation and to the operational requirements of the force at that time.
When deciding who will be responsible for decisions about X-factor deductions, forces should bear in mind that an appeal may subsequently be made to the chief officer of police. Therefore, to maintain an element of independence in the appeals process, provision made by the force for an appeal to be made to someone other than the person who made the initial decision to deduct the ‘X-factor’
Officers must be notified in writing of the decision. One month’s notice will be given of any deduction of the deployment element of X-factor from pay.
X-factor as a proportion of pay is as defined at paragraph 53 and in Annex EE of the determinations under Police Regulations 2003. For clarity, calculation of X-factor deductions should not include any additional allowances or other payments (for example: London weighting, CRTP, overtime or acting up allowance).
X-factor shall be calculated daily, for each day which the member has spent on adjusted duties. A day’s pay for the purposes of this determination shall be calculated according to the determination at Annex M made under Regulation 30 (dividing by 7 the weekly rate).
For part time members, X-factor should be calculated on a pro-rata basis, taking into account the number of hours worked per week.
Any deduction shall be calculated according to the officer’s rate of pay on the day immediately after one months’ notice has elapsed and shall be deducted in arrears on each pay day for each day of the previous pay period which the member has spent on adjusted duties.
Determination of Pay Reductions – Where an officer remains on adjusted duties following the 12 month review and that officer is not being considered for ill health retirement, recommendations will be required from the formal management review meeting about whether or not the X-factor component of pay should be removed. All decisions in respect of pay deductions for both Forces will be delegated to the Head of People and considered on a case by case basis taking into account the operational resilience requirements of each Force at that time, the individual circumstances and equalities legislation. The decision either way will be notified in writing, with one month notice given should the decision be to deduct the X-factor from pay.
Removing X-factor should be viewed as a means of encouraging managers to focus on returning officers to full duties wherever possible; limiting the use of adjusted duties whilst still retaining valued officers in police roles in a way that is fair to fully deployable officers.
Removal of X-factor would not preclude the use of formal actions or sanctions under the Police (Performance) Regulations if it is appropriate to initiate these later on.
Fairness and justification of X-factor retention
Forces are advised to set down in writing and regularly review guidelines to promote fairness and consistency in the decision making process which should not rule out the possibility of exceptions. This should include clear justification in relation to the potential impact on force resilience. To do this, forces will need to regularly review their workforce against the operational requirement and changing local and national priorities.
There will be an initial and on-going exercise conducted by the Head or Director of Corporate Services in each Force to fully assess and understand the level of demand and operational resources for each Force in order to meet that demand with fully deployable officers on a day to day basis, as well as meet exceptional demand and the National Strategic Policing Requirement. This operational requirement will be described in writing and reviewed on an annual basis taking into account changing priorities.
The chief officer may decide that the deployment component of the X-factor may be retained by the officer in the following circumstances:
The range of roles to which the force is able to deploy the officer is not significantly reduced.
The avoidance of manifest unfairness e.g. where fully fit officers are performing the same range of duties within a role as an officer on adjusted duties.
An officer is on adjusted duties solely as the result of an injury sustained or contracted in the course of having put themselves in harm’s way in the execution of their duties (see Annex A for examples).
Some other exceptional reason (some examples of what would not generally be considered exceptional are provided in Annex A but the decision about what is classed as an exceptional reason should be made locally).
The officer has the right to appeal the decision to reduce their pay to the chief officer of police. With reference to paragraph 60, this should always be a different person from the person who made the decision that a pay deduction was appropriate.
Allowable grounds for appeal are:
abuse of process; b. perverse decision.
Should she/he submit an appeal that is upheld, pay will be reinstated, including any back pay as applicable.
Appeals against a decision to deduct the X-factor from pay must be received within 28 days of the date of the letter notifying the officer on the decision (unless there is a strong justification to extend this time period). Any such appeals will need to be submitted in writing and will be considered by the Deputy Chief Constable in each Force or the Director of Support Services within one month of the appeal being received.
Review of officers on adjusted duties after the first year
Subsequently, line manager reviews of adjusted duties officers should take place on at least an annual basis to check that arrangements are still working for both the individual and the force and that any pay adjustment is still appropriate. These reviews should take the same format as the 12 month review.
A review can be initiated at the request of either the officer or local managers at any time if there is any significant change in circumstances (i.e. a change in the officer’s condition for better or worse, a change in the level of force resilience etc). If the conclusion of the review is that an officer’s condition has improved to the point where adjustments are no longer necessary, they should be taken off adjusted duties and pay reinstated with effect from the date of the conclusion of the review (including consideration of any new medical advice).
For clarity, it should be noted that UPP processes should be treated as separate from the adjusted duties process, but removal of x-factor would not preclude the use of UPP sanctions if it is appropriate to initiate these later on. Care should be taken to ensure that the performance of disabled officers is appropriately measured – for example, it may be a reasonable adjustment in some cases to adjust the expected level of output compared to other officers performing the same role in order to remove a disadvantage to the officer.
In relation to any referrals made to the Selected Medical Practitioner in relation to consideration of ill-health retirement after the implementation of any pay deduction, any further decision about X-factor deduction shall be stayed until the day immediately after the date when a decision is made by the chief officer of police to retain or retire the officer.
Arrangements from 1 May 2015 in relation to officers currently categorised as being on “restricted duties”
It is recommended that forces begin an immediate assessment of all officers currently on ‘restricted duties’ against the new definitions of ‘limited duties’. This should be carried out in the context of overall force resilience and the number of officers required to be flexibly deployable to meet demand and provide an effective service. This will include having an understanding of the range of capability and deployability requirements needed for each role in order to achieve resilience.
Officers currently on ‘restricted duties’ according to the existing definition should not automatically be transferred to the new category of adjusted duties. Any decision to place an officer on adjusted duties needs to be taken in accordance with the process above. This will be especially relevant to those forces that currently define ‘restricted duties’ more broadly – for example, some forces may include in this definition officers who are able to undertake a more limited range of duties than usual on a temporary basis or who are undergoing a phased return to work, the latter would constitute recuperative duties under the new definitions.
For the avoidance of doubt, it is likely that some officers with disabilities (as defined under the Equality Act 2010) will be fully deployable and will not be suitable for Adjusted Duties.
The decision to place an officer on adjusted duties represents an intention to retain an officer in the force in a substantive policing role that matches their individual capabilities, on the understanding that this may necessitate long term or permanent workplace adjustments. Therefore, officers currently on ‘restricted duties’ who have been referred to the Selected Medical Practitioner for consideration of the possibility of permanent disablement, or permanent medical unfitness (as defined under the Police Pensions Regulations) should not automatically be re-categorised as being on adjusted duties until the outcome of any such assessment is known.
Any performance or attendance issues identified at this stage that fall within the scope of UPP should be dealt with separately, according to the usual procedures. If an officer currently on restricted or recuperative duties is already subject to UPP procedures, this should be progressed as usual. Forces are reminded that in disability cases the UPP process should explore whether adjustments could support the officer back to an acceptable level of performance or attendance in the role or another role as appropriate. Ill health retirement should also be considered if relevant.
Officers who are likely to fall under the new category of ‘adjusted duties’ should be assessed against current medical/capability reports. In most cases, a nurse-led paper based review is likely to be the most proportionate approach, with new medical reviews being conducted only in cases where there is a clear justification for doing so. Forces are expected to complete such a review within 9 months of this guidance coming into effect.
A nurse led paper based review was felt to be insufficient in view of the importance of this assessment. Each officer who is currently on recuperative or restricted duties will therefore be contacted by Occupational Health to review their individual circumstances and determine any necessary workplace adjustments.
Officers currently on permanent restricted duties who feel they may require referral to Occupational Heath, should discuss this with their line manager in the first instance and await contact from Occupational Health for the initial review as per the above arrangements
Line managers will receive an invitation to complete both a referral for annual review of restrictions and a questionnaire to pass on to the officer concerned. These will be assessed by the OH Advisers and should any further review be deemed appropriate due to significant changes they will initiate it. FMA reviews will be assessed on a case by case basis.
Where following the review process an individual believes there are grounds for their case to be referred to a Force Medical Adviser (FMA) they will have the opportunity for it to be referred for review. Should this be requested, the line manager of the individual will in the first case discuss the request for referral to the FMA with the Occupational Health Adviser (OHA) who will in turn progress their case to an FMA for review.
83. If a final decision is made to place an officer on ‘adjusted duties’, their situation should be reviewed after 12 months according to the process set out above.
Re-Employment Police Staff Roles
Police officers who leave the service or who are considering leaving the service should be given the opportunity to apply for a police staff job if one is available. Forces will need to be mindful of their prior statutory obligations to police staff who are at risk of redundancy, and those requiring redeployment on disability grounds.
Re-joiners 85. In keeping with Regulation 10B of the Police Regulations 2003, officers may re-join the service within 5 years at the same rank and pay point. This may be longer, at the Chief Constable’s discretion.
Annex A: Further guidance on the exercise of discretion in relation to pay deductions associated with adjusted duties Examples where a chief officer may decide to exercise their discretion not to deduct pay could include:
an officer injured whilst pursuing or arresting a suspect or assaulted by a person in his or her custody; • an officer injured whilst attempting to effect a rescue at a fire or serious accident/incident; • an officer suffering medically diagnosed post-traumatic stress disorder as a result of the performance of police duty • an officer suffering illness as a result of contact with a contaminated hypodermic needle during a search of a person or premises; • an officer suffering terminal illness;
The following are examples, which would not normally attract favourable discretion:
an officer is working hard within their range of limited capabilities; • welfare issues; • disability • there is evidence of default or neglect on the officer’s part; • an officer’s actions may be delaying the process of recovery; • the officer is unreasonably failing to cooperate with a rehabilitation programme or comply with requests to attend medical examinations or supply medical information; • an officer has multiple medical conditions, not all of which arise from an injury sustained through putting themselves in harm’s way in the execution of duty and where that injury is not the one which necessitates workplace adjustments. • an officer suffering a sporting injury (whether or not playing for a police team); • an officer injured in an accident on police premises, for example, by tripping or lifting or carrying of equipment, or whilst undergoing classroom-based training; • an officer injured off duty whilst travelling to or from work; • chronic illness unrelated to any particular source or cause arising from the specific duties relating to the office of constable; • illness incapacitating an officer from the ordinary duties of a police constable but which would not be incapacitating for other occupations; • stress related illness (including psychiatric illness) resulting from working conditions generally.
3.2 All officers affected by the regulations will be fully involved in the process working together with Health Services and designated Health professionals to ensure that they are considered, assessed and managed on a case by case basis. Wherever possible the aim should be to reach a solution that meets the needs of the officer and the operational requirements of the relevant Force, thereby maximising the contribution and capabilities of officers.
3.3 See the Home Office Circular 010/2015, the Determinations of the Secretary of State under the Police Regulations 2003, Guidance and Protocol equality statement for further information.
4. Implications of the protocol
4.1 Finance / Staffing / Training / Other
Finance – there may be some small savings from Force budgets in terms of the reduction of pay and pensions for officers on long term adjusted duties.
Staffing – there will be a need to conduct a Force wide review of the operational resilience requirements to meet the day to day operational resourcing requirements as well as exceptional levels of demand and to meet the commitments for the Strategic Policing Requirement. This will be supported by an exercise to determine suitability of roles for adjusted duties officers in the future.
Training – there will be an initial and on-going training requirement for line managers to support them to effectively manage officers on recuperative and adjusted duties.
Managers – will need to provide support to Limited Duties officers, prepare regular reports and risk assessments to feed into Occupational Health and Management Review meetings.
Health Services – Occupational Health staff in both Forces will play an essential and significant role in providing health assessments at various stages in support of this protocol.
Individual Officers - There is the potential for pay and pension related implications for individual officers on adjusted duties for longer than 12 months should the decision be taken to deduct the X-factor component.
4.2 Risk Assessment There is no specific risk assessment or health and safety consideration thought relevant to the content of this protocol.
Managers and officers 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.
4.3 Equality Impact Assessment
Police Federation – Kent Police & Essex Police • Superintendents Association – Kent Police & Essex Police • Health Services, Occupational Health • Learning & Development • IT Directorate, SAP Team • Staff Support Groups – Crystal Clear & Essex Police Disability Network
6. Monitoring and review
There is a need to review and publish both Forces overall Operational Resilience requirements on an annual basis. • A National Review of the Limited Duties arrangements is scheduled for July 2016.
7. Related force policies
8. Data Security
Essex Police and Kent Police have measures in place to protect the security of your data in accordance with our Information Management Policy.
Retention & Disposal of Records
Essex Police and Kent Police will hold data in accordance with our Records Review, Retention & Disposal Policy.
We will only hold data for as long as necessary for the purposes for which we collected.
If you require any further information or to request any documentation referenced within the policy please contact [email protected] For general enquiries you can find contact details for Kent Police on the website https://www.kent.police.uk/contact/af/contact-us/.