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SECTOR: Public

Employment

I would like to take this opportunity to thank both Shirley and Robert for all your help and support. I know you must have many cases to deal with yet I felt as though you were always giving me 100% in both guidance and honesty. I will not hesitate to use your services again and I will recommend Samuel Phillips to anyone who needs a professional, yet friendly law firm.

We provide training on many employment matters. We also provide representation at police misconduct hearings, and representation at employment tribunals.

Why?

Training

Experience

NHS trusts and police

Work in education

Team of specialists

Value of money

FAQ
Who is a Police Friend and what can he or she do?

Police Officers have the right to consult with and be accompanied by a Police Friend at any interview during an investigation into misconduct and at all stages of misconduct or performance proceedings.

A Police Friend can either be a Police Office, a Police staff member or a person nominated by the Police Officers Staff Association. A Police Friend may not be someone who has had any involvement in that particular case for example as a witness.

The Police Friend can advise, accompany and represent the Police Officer at any interviews during an investigation into misconduct and at all stages of the misconduct or performance proceedings.

The Police Friend is not there to answer questions on the Police Officers behalf but is entitled to do the following in respect of misconduct meetings, hearings or special case hearings:

– Put the Police Officers case
– Sum up that case
– Respond on the Police Officers behalf to any view expressed at the meeting
– Make representations concerning any part of the proceedings
– Confer with the Police Officer; and
– In misconduct meetings/hearings, ask questions of any witnesses

A Police Friend is entitled to attend misconduct meetings and hearings even where the Police Officer is also legally represented. The Police Friend is entitled to take a reasonable amount of duty time to fulfil his responsibilities as a Police Friend and when he is doing so he is to be considered on-duty at that time.

Does Employment Law apply to members of the Police Force?

The Police Service is not 'employment' for the purposes of the Employment Rights Act 1996. Police Officers therefore do not have the right to bring employment tribunal claims such as claims for unfair dismissal, redundancy or unlawful deduction from wages. Exceptionally Police Officers may bring claims for unfair dismissal for health and safety and whistleblowing reasons, discrimination and claims under the Working Time Regulations. Police Officers have rights to pay and leave (e.g. sick leave and sick pay and maternity leave and pay) which are equivalent or better than the statutory minimum given to ordinary employees.

Unlike ordinary employees, Police Officers cannot be dismissed outside of the express provisions of the Police Conduct Regulations. Dismissal can only take place after probation and only for misconduct, efficiency or retirement under the Pension Regulations. In misconduct and efficiency cases there are detailed regulations setting out the procedures the Police Force must follow before dismissing an Officer.

Police Staff, also known as civilian staff, are employees for the purposes of the Employment Rights Act 1996 and enjoy the same Employment Protection Rights as other employees.

What is unlawful discrimination?

Police Officers are protected from discrimination in the same way as ordinary employees under the Equality Act 2010. Discrimination is only unlawful if it is in relation to a protected characteristic.

The protected characteristics are: Age; Disability; Gender reassignment; Marriage and civil partnership; Pregnancy and maternity; Race; Religion or belief; Sex; and Sexual orientation.

Discrimination can take the following forms:

– Direct discrimination: where because of a protected characteristic, A treats B less favourably than A treats or would treat others.
– Indirect discrimination: where A discriminates against B : A applies to B a Provision Criterion or Practice (PCP); B has a protected characteristic; A also applies (or would apply) that PCP to persons without the protected characteristic; The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage when compared to others; The PCP put B to that disadvantage; and A cannot show that the PCP was a proportionate means of achieving a legitimate aim.
– Harassment: where A engages in unwanted conduct relating to a protected characteristic which has the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading or otherwise offensive environment for B; or If A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect referred to above; or If because of B's rejection or submission to conduct referred above, A treats B less favourably than A would treat B if he had not rejected or submitted to the conduct.
– Victimisation: where A subjects B to a detriment either because B has done a protected act or because A believes B has done a protected or may do a protected act. Protected acts including bringing proceedings under the Equality Act, giving evidence or information in connection with such proceedings or alleging that an employee has contravened the Equality Act.
– Failure to make reasonable adjustments: in the case of disability discrimination only. Where the employer fails to make reasonable adjustments where a provision, criterion or practice or a physical feature puts an employee at a substantial disadvantage in comparison to those who are not disabled.
– Instructing, causing, inducing or knowingly helping unlawful acts of discrimination (e.g. if an employer instructed an employee to treat a colleague less favourably due to a protected characteristic).

For more information, contact robertgibson@samuelphillips.co.uk.

An Officer has been off sick for 2 years, we are taking steps to terminate his employment, is he entitled to be paid for annual leave accrued during his absence and if so how much?

Under the Working Time Regulations workers are entitled to 5.6 weeks paid holiday per year which may only be taken in the leave year it is due and may not be replaced by a payment in lieu of holiday except upon termination of employment. The first 4 weeks of statutory holiday may not be carried over from one leave year to the next but the remaining 1.6 weeks can be carried over if there is a relevant agreement to that effect. The case of Stringer, heard in the European Court of Justice and the House of Lords, held that workers continue to accrue holiday during long term sick leave. If they are prevented from taking holiday because of sickness, they must be allowed to take it upon their return even if this means carrying over until the next leave year. In another European Court of Justice case (Pereda) it was held that workers may elect to take annual leave during sick leave, effectively suspending the sick leave during the period in which holiday is taken. In a claim under the Working Time Regulations, a worker can only claim compensation for unpaid holiday within 3 months of the non-payment. The case of Stringer held however that claims for non-payment of holiday can be brought as a claim for unlawful deduction from wages under the Employment Rights Act. The time limit for these claims is 3 months from the last deduction of a series of deductions. This means that so long as the series of holiday pay deductions continues, the time limit for bringing a claim does not start to run. If the Officer has not elected to take statutory annual leave during his sick leave, he will be entitled to pay in lieu of accrued statutory holiday for the sick leave period upon termination of employment. Note however that this only applies to statutory annual leave. In respect of contractual annual leave he will only be entitled to payment in lieu of that accrued in the final leave year.

The Force Medical Officer has reported that one of our officers has a disability. What additional responsibilities does the Force have in light of this?

The Force will be under a duty to make reasonable adjustments in the following 3 circumstances:
i) Where the Forces Provision, Criterion or Practice puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, it must take such steps as it is reasonable to have to take to avoid the disadvantage.
ii) Where a physical feature puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, the Force must take such steps as it is reasonable to have to take to avoid the disadvantage.
iii) Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled, the Force must take such steps as it is reasonable to have to take to provide the auxiliary aid.

The Equality and Human Rights Commission sets out a non-exhaustive list of what could constitute a reasonable adjustment, these include:

– Making adjustments to premises (widening a doorway, providing a ramp or moving furniture for a wheelchair user).
– Providing information in accessible format (braille or audio tape).
– Allocating some of the disabled persons duties to another person.
– Altering the disabled persons hours of work or training (flexible hours, additional breaks, part time working, homeworking or working different hours).
– Assigning the person to a different place of work or training (to a Police Station nearer to his or her home or simply moving their desk to a more accessible place).
– Allowing the person to be absent for rehabilitation, assessment or treatment.
– Giving or arranging for training or mentoring.
– Acquiring or modifying equipment (adapted keyboard or large screen for a visually impaired person).
– Modifying procedures for testing or assessment (for those with restricted manual dexterity where they would be disadvantaged by a written test or assessment that assessment could be given orally).
– Providing a reader or interpreter.
– Proving supervision or other support (for example those whose disability leads to uncertainty or lack of confidence.
– Providing a Support Worker to assist a disabled employee.
– Modifying internal procedures (e.g. disciplinary and grievance procedures).
– Adjusting redundancy selection criteria (so periods of disability related absence are not taken into consideration).
– Modifying performance related pay arrangements.

It is essential that the Force undertakes a thorough assessment of the disabled Officers circumstances in order to identify precisely in what respect he is placed at a substantial disadvantage compared to others and in light of that what adjustments may reasonably be made. It is also necessary to consult thoroughly with the Officer concerned to ascertain his perception about his abilities and what adjustments he feels would assist him to carry out his duties. As to whether an adjustment is reasonable, the following factors are taken into consideration: The extent to which the adjustment would have ameliorated the disadvantage. The extent to which the adjustment was practicable.

The financial and other cost of making the adjustment and the extent to which the step would have disrupted the Forces activities. The financial and other resources available to the Force. The availability of external financial or other assistants. The nature of the Forces activities and the size of the undertaking. Ultimately the test of reasonableness is an objective one but depends upon the circumstances of each case. In cases concerning Police Forces, the law will set the bar very high in terms of what is reasonable and in terms of the extent of resources to apply to such adjustments.

For further information please contact Robert Gibson at robertgibson@samuelphillips.co.uk

OUR TEAM
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  • Sally Lomas Fletcher
  • Angela Carver

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