Human Resources - Police performance and attendance protocol (L1860)

1. Summary of changes

1.1 This protocol has been reviewed in February 2022, the following amendments have been made:

• the hyperlinks to the (Home Office guidance for unsatisfactory performance and attendance management procedures) and (Police Performance Regulations 2020) have been updated to ensure that these are the latest versions
• additional context has been created within section 3 (Paragraph 3.16.6) to explain circumstances when an officer can be directly referred by the appropriate authority and or the Director General to a second or third stage meeting

2. What this protocol is about

2.1 This protocol details the process to be followed if an issue has been identified concerning performance and/or attendance. It applies to all police officers who have passed their probation up to and including chief superintendents, as well as members of the Special Constabulary. Whilst reference to Performance Regulations 2012 relate to special constables, reference to PDRs, pension regulations and pay increments, relate to police officers only.

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

3. Detail the protocol

3.1 Police officers and members of the Special Constabulary have a duty to serve the public and the needs of the people in the counties of Essex and Kent. However, on occasion, an individual’s performance and/or attendance may become unsatisfactory for a variety of reasons, in which case line managers should demonstrate that they have considered supportive interventions such as management action, and informal development planning before any formal unsatisfactory performance procedures are instigated. Where such supportive management action does not result in an improvement, then formal action through use of the Police (Performance) Regulations 2020 may be appropriate. Home Office guidance states that the underlying principle of these procedures is to provide a fair, open and proportionate method of dealing with performance and attendance issues and to encourage a culture of learning and development for individuals and the organisation. Advice, guidance and support in respect of management action or formal procedures is available from the performance improvement unit, an HR Adviser, or HR Partner. An officer subject to unsatisfactory performance procedures should be reminded that he/she is entitled to be accompanied to any meeting under the performance regulations by a police friend. It should be noted that in the context of this protocol, management action describes action taken by managers to deal with unsatisfactory performance or attendance issues in the light of their knowledge of the individual and the circumstances giving rise to the concerns, as set out in the Home Office guidance at 3.33. This is distinct from management action to address misconduct, as set out in the Home Office guidance at 2.140.
 
3.2 All performance and attendance matters should be handled in a timely manner while maintaining confidence in the process. Both management action and formal performance and attendance procedures should be applied fairly in both a non-discriminatory and non-adversarial way and matters must be handled in the strictest confidence by the organisation, the officer and all other parties involved.

3.3 Where the Police (Performance) Regulations are used, line managers in the police service and others involved in the process must act in a way which an objective observer would consider reasonable. At all times, the requirements of the Police (Performance) Regulations must be complied with. Home Office guidance exists to help managers decide how and when to use the formal procedures in the regulations to manage unsatisfactory performance or unsatisfactory attendance.

3.4 The importance of assessing the performance or attendance of individual police officers in the context of overall unit/ force performance and the police officer’s personal development and then challenging unsatisfactory performance and/or attendance should not be underestimated. Dealing sensitively and proportionately with performance or attendance issues in a justifiable manner does not constitute bullying. If a police officer believes that he or she is being unfairly treated, there are avenues of appeal against both the decision and the outcome at each stage of the Unsatisfactory Performance Procedure (UPP).

3.5 Each police officer in Essex and Kent should be subject of a performance development review (PDR). This should be one of the principle methods by which a police officer’s performance and attendance is monitored and assessed. The activities and behaviours expected of a police officer in order to achieve his or her objectives should be in accordance with the relevant national framework which will form the basis of the police officer’s role profile.

3.6 Any unsatisfactory performance or attendance should be pointed out at the earliest opportunity by the line manager and consideration given as to whether this is due to inadequate instruction, training, supervision or some other reason. Consideration should be given to making reasonable adjustments, in accordance with the Equality Act 2010, where an officer has or is believed to have a disability. It may be the case that making reasonable adjustments will result in improved performance and/or attendance. A disability is defined in the Equality Act 2010 as follows ‘a person has a disability if the person has a physical or mental impairment and the impairment has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities’.

3.7 Where an individual’s performance or attendance is considered to be unsatisfactory then the line manager will ensure that the officer’s PDR reflects the concerns regarding performance and/or attendance. If an annual or six month review is not required at this point, then the line manager will conduct an interim review where the assessment against the role requirement will be either meets role expectations but with some developmental needs or below role expectations. The line manager will clearly set out in the PDR the evidence of unsatisfactory performance/attendance.

3.8 Management action may be recorded via a development support plan or through the officer’s PDR. Advice on setting a development plan or PDR objectives may be sought from the PIU, HR Partner or HR Adviser.

3.9 Where the individual’s performance or attendance does not improve sufficiently following such initial supportive management action, the formal stages of the performance regulations may be followed. In all cases where formal procedures are considered by a line manager, then engagement with the PIU should occur.

3.10 Regulation 4 of the Police (Performance) Regulations 2020 defines unsatisfactory performance or attendance as “an inability or failure of a police officer to perform the duties of the role or rank he (or she) is currently undertaking to a satisfactory standard or level.”

3.11 Performance

3.11.1 The Home Office guidance to the Performance Regulations state; There is no single formula for determining the point at which a concern about a police officer's performance should lead to formal procedures under the Police (Performance) Regulations being taken. Each case must be considered on its merits and there is no restriction on referring appropriate cases straight to a first stage meeting where the manager considers it appropriate to do so. However the following points need to be emphasised:

a. the intention of performance management including formal action under the Police (Performance) Regulations is to improve performance
b. occasional minor lapses below acceptable standards may be dealt with in the course of normal management activity and the application of the UPPs may not be necessary
c. managers should be able to demonstrate that they have considered whether management action is appropriate before using the UPPs

3.11.2 Managers must record their decisions to instigate formal action under the regulations with supporting rationale.

3.12 Attendance

3.12.1 The Home Office guidance to the Performance Regulations state; formal action under the Performance Regulations may be taken in cases of both unacceptable levels of persistent short-term absences and long-term absences due to sickness and/or injury. It should however be noted that it is not possible to be prescriptive about all circumstances where action under the regulations may be appropriate.

3.12.2 In deciding whether to take action under the procedures managers must treat each case on its merits and consider all of the pertinent facts available to them, including:

a. the nature of the illness, injury or condition
b. the likelihood of the illness, injury or condition (or some other related illness, injury or condition) recurring
c. the pattern and length of absence(s) and the period of good health between them
d. the need for the work to be done i.e. what impact on the force’s performance and workload is the absence having
e. the extent to which a police officer has co-operated with supportive management action
f. whether the police officer was made aware, in the earlier supportive action, that unless an improvement was made, action under the Performance Regulations might be used
g. whether the selected medical practitioner (SMP) has been asked by the local policing body to consider the issue of permanent disablement and/or the local policing body is considering medical retirement
h. the impact of the Equality Act 2010

3.12.3 Managers must bear in mind that this is a supportive process and decisions on a particular course of action must be documented with supporting rationale and taking account of the Equality Act 2010 where applicable.

3.12.4 Whether it is appropriate to take formal action in any particular case will depend on the known merits and facts of that case. There is no restriction on taking action under the UPPs in relation to previous unsatisfactory attendance notwithstanding that the officer has now returned to work.

3.12.5 Where a meeting is held under the Performance Regulations, line managers should consider reasonable adjustments for the meeting, for example holding the meeting away from police premises.
 
3.13 Further advice and guidance can be obtained from the PIU, a HR Adviser or HR Partner. The Home Office guidance can be viewed at: Home Office guidance unsatisfactory performance and attendance management procedures.

3.14 Managers are reminded that the interventions and trigger points contained within the positive attendance management (PAM) process provide a supportive framework within which attendance can be managed. The PAM process should be used in conjunction with both informal and formal stages of attendance management.

3.15 Relationship with ill health provisions

3.15.1 Under the Police Pensions Regulations, where a force considers that an officer may be permanently disabled from performing the normal duties of a police officer, they should refer the question to the Selected Medical Practitioner (SMP).

3.15.2 Where the officer is referred to the SMP, no action shall be either begun or continued under the Police (Performance) Regulations with regard to the attendance of the police officer until the report from the SMP has been received by the force. Action may be taken where the unsatisfactory attendance is unrelated to the condition forming the basis of the SMP referral.

3.15.3 Where an officer appeals to the Medical Appeals Board against a decision that he/she is not permanently disabled or to Crown Court after the refusal of the force to refer the officer to the SMP, no action shall be either begun or continued under this policy until the appeal has been resolved. Action may be taken where the unsatisfactory attendance is unrelated to the condition forming the basis of the appeal.

3.15.4 Further guidance on ill health retirement can be obtained by reading PNB Circular 03/19.

3.15.5 It is advisable for managers to seek up to date medical advice from Occupational Health prior to taking action under this protocol and to seek further advice prior to any formal stage of the process from the PIU, an HR Adviser or HR Partner.

3.15.6 This protocol needs to be considered alongside an on-going duty to make reasonable adjustments to support officers with a disability. In an unsatisfactory attendance case it is essential that managers and the force ensure compliance with their obligations under the Equality Act 2010. Such support can include but is not limited to adjusting trigger points for action - it is accepted that those officers who are disabled may be more likely to be absent due to their disability. In such circumstances, the organisation may tolerate a higher proportion of disability related absence before undertaking any informal or formal action.

3.16 Unsatisfactory performance procedures

3.16.1 The Police (Performance) Regulations 2020 set out the process for the unsatisfactory performance procedures. There are potentially three stages to the UPPs, each of which involves a different meeting composition and possible outcomes.

3.16.2 Overview of the procedures: note that this paragraph is an overview only and the procedures must not be implemented without reference to the Police Performance Regulations 2020 and the Home Office guidance to the regulations.

3.16.3 Where at a stage one meeting, the line manager finds that the performance or attendance of the officer is unsatisfactory; a written improvement notice will be issued to the officer. The validity period of this notice is twelve months. A specified period of an improvement notice is set by the line manager, within which the police officer must improve his or her performance or attendance. The officer must then maintain that improvement for the remainder of the validity period. Where sufficient improvement is made in the specified period and maintained in the remaining validity period, then the procedure comes to an end.

3.16.4 Where sufficient improvement is not made within the specified period, or maintained within the validity period, a second stage meeting may be held. This meeting is chaired by the officer’s second line manager and should the performance of attendance of the officer be found to be unsatisfactory at this meeting then a final written improvement notice is issued. A validity period is set for twelve months and again a period is specified for improvement to be made by the officer. Where sufficient improvement is made in the specified period and maintained in the remaining validity period, then the procedure comes to an end.

3.16.5 Where sufficient improvement is not made within the specified period or maintained within the validity period, then a third stage meeting may be held. This meeting will be with a panel appointed by the appropriate authority. The panel will comprise a chair and two other members. One of the panel members should be an HR professional. Where the panel finds that an officer’s performance or attendance is unsatisfactory, one of the following outcomes may be ordered: dismissal of the officer, reduction in rank (for performance only), redeployment to alternative duties, or in exceptional circumstances the panel may agree to extend the final written improvement notice.

3.16.6 There may be exceptional circumstances where the appropriate authority, or the Director General directly refers a police officer to a second stage meeting, following a formal investigation. An officer can also be referred directly to a third stage meeting where the appropriate authority considers the performance (not attendance) of a police officer to be so unsatisfactory as to warrant the procedures being initiated.
 
3.16.7 A line manager can ask a HR professional or police officer (who should have experience of UPPs and be independent of the line management chain) to attend a UPP meeting to advise him or her on the proceedings at the first stage meeting. A line manager may also obtain such advice prior to a first stage meeting if he or she has any doubt about the process.

3.16.8 The second line manager may also have an adviser (as above) in respect of the second-stage meeting.

3.16.8 For stage three meetings, an HR professional, police officer, counsel or solicitor may attend the meeting to advise the panel on the proceedings.

3.16.10 Following each of the three stages to the process, an appeal procedure is available to officers.

3.16.11 Advice for line managers considering the instigation of the Police (Performance) Regulations should be sought from the PIU or from the local HR adviser. The PIU are able to provide line managers with the required letters and templates to support the UPP process.

3.16.12 The arrangements and procedures for meetings and appeals at all stages will be in accordance with the Police (Performance) Regulations 2012 and the Home Office guidance.

3.17 Pay increments

3.17.1 In accordance with the Police Regulations 2003, Annex F, Part 1B, incremental progression through the pay scale for officers up to the rank of chief inspector will be dependent upon an officer receiving a grade assessed as ‘meets role expectations but with some development needs’ or above in their PDR for the preceding twelve months of their service from the anniversary of the officer’s end of year assessment (annual PDR).

3.17.2 Where an officer has been issued with a written improvement notice or final written improvement notice under the performance regulations within the period of twelve months prior to and more than six weeks before the annual PDR, and has been assessed as below role expectations in the end of year PDR, the officer will not be entitled to their next pay increment.

3.17.3 Where the written improvement notice/final written improvement notice is issued within the period of six weeks prior to the annual PDR, the chief constable (or delegated authority) has the discretion to permit incremental progression in the case of that member if the chief constable is of the view that the last six weeks of the PDR year is not representative of the preceding 12 months performance of the officer.

3.17.4 In order to assist the line manager in this process, where a written improvement notice or final written improvement notice has been issued, the PIU will notify the officer’s line manager in writing of the next end of year PDR due date and any pay increment. The line manager will notify the payroll department in writing that the increment will be withheld pending the completion of their next end of year PDR. For the ranks of PS, inspector and chief inspector, this will not be applicable where the increment due date falls between the date that the written improvement notice is issued and the date of the end of year PDR. The PIU will provide template letters for the line manager to use.

3.17.5 Where the PDR assessment is one of below role expectations and unless the chief constable has permitted incremental progress as at 3.17.3 above, the line manager will notify the officer and payroll in writing that the next pay increment is to be withheld. The PIU will provide template letters for the line manager to use.

3.17.6 Where an increment has been previously withheld and the line manager assesses the officer as meets role expectations but with some development needs or above in the following end of year PDR, the line manager will notify the officer and payroll in writing that the pay increment is to be reinstated. The PIU will provide template letters for the line manager to use.

3.17.7 Line managers completing an end of year PDR assessment for an officer following a UPP meeting will have received appropriate training.

4. Equality Impact Assessment (EIA)

4.1 This protocol has been assessed with regard to its relevance to race and diversity equality. As a result of this assessment the protocol has been graded as having a low potential 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 The following, within Essex Police and Kent Police, were invited to provide feedback in the consultation phase during the formulation of this document:

• Head of Employee Relations
• Head of Operational HR
• Kent Police Federation
• Essex Police Federation
• Head of Essex PIU
• Head of PSD (Essex
• Head of PSD (Kent)
• Payroll and Pensions Manager
• Equality and Diversity Co-ordinator
• Health and Safety
• Strategic Change Team
• Policy/Risk
• Superintendents Association
• Specials Constabulary (Essex)
• Talent and People Development Manager
• Support Networks
  • MESA
  • Disability Network
  • Women’s Leadership Development Forum
  • Work Life Balance
  • NEXUS – Acting Chair
  • Christian Police Association
  • Crystal Clear (Kent)

7. Monitoring and review

7.1 This protocol will be reviewed every two years by, or on behalf of, the Head of Performance Improvement Unit, to ensure it remains accurate and fit for purpose.