The Police Service of Scotland (Performance) Regulations 2013

PART 1 General

Citation and commencement

1.    These Regulations may be cited as the Police Service of Scotland (Performance) Regulations 2013 and come into force on 1st April 2013.

Interpretation

2.    In these Regulations—

“the 1996 Regulations” means the Police (Efficiency) (Scotland) Regulations 1996(1);

“the Act” means the Police and Fire Reform (Scotland) Act 2012;

“appellant” means a constable making an appeal under regulation 20;

“chairing constable” means the individual appointed under regulation 15(1);

“countersigning officer” means a constable who is of a higher rank than the reporting officer appointed for the purposes of any proceedings under these Regulations;

“first interview” means the interview arranged under regulation 6;

“inefficiency hearing” means (unless the context otherwise requires) the hearing arranged under regulation 14;

“interviewing officer” means (unless the context otherwise requires) the individual appointed under regulation 6 to conduct the first interview;

“personnel officer” means a member of the police staff or a constable who, in either case, has been assigned functions in relation to proceedings under these Regulations;

“police force” means a police force maintained, before 1st April 2013, under the Police (Scotland) Act 1967(2);

“reporting officer” means (unless the context otherwise requires) a constable of a rank not lower than sergeant who has immediate supervisory responsibility for the constable in respect of whom proceedings under these Regulations are taken;

“senior manager” means—

(a)

the individual who is, for the time being—

(i)

supervising the individual who is the countersigning officer; or

(ii)

the local commander of the division to which the constable is assigned; or

(b)

where the countersigning officer mentioned in paragraph (a)(i) is of the same rank as the local commander of the division to which the constable is assigned, that local commander;

“second interview” means the interview arranged under regulation 10;

“the constable” means (unless the context otherwise requires) a constable to whom these Regulations apply and in respect of whom proceedings under these Regulations are taken; and

“transferred constable” means an individual who—

(a)

before 1st April 2013 was serving as a constable of a police force (excluding any such individual who was, immediately before that date, engaged on relevant service within the meaning given by section 38A(1) of the Police (Scotland) Act 1967);

(b)

is transferred to the Police Service under paragraph 6 of schedule 5 to the Act; and

(c)

is not a special constable.

Application

3.—(1) With the exception of Part 6 (senior officer performance), these Regulations apply only in relation to the performance of constables below the rank of assistant chief constable who have completed their period of probation.

(2) These Regulations do not apply to—

(a) constables on temporary service outwith the Police Service (either under arrangements made under section 15 of the Act or by virtue of paragraph 8(4) of schedule 5 to the Act);

(b) individuals engaged on temporary service as a constable of the Police Service (either under arrangements made under section 16 of the Act or by virtue of paragraph 8(2) of schedule 5 to the Act); or

(c) special constables.

Designation of deputy chief constable

4.  The chief constable must designate a deputy chief constable to carry out functions under these Regulations (and references in these Regulations to “the deputy chief constable” are, unless the context otherwise requires, references to that individual).

PART 2 First interview

Circumstances in which first interview may be required

5.  Where the constable’s reporting officer considers that the constable’s performance is unsatisfactory, that officer may require the constable to attend a first interview to discuss the constable’s performance.

Arrangement of first interview

6.—(1) Where the reporting officer decides to require the constable to attend a first interview, the reporting officer must—

(a) send a notice in writing to the constable—

(i) requiring the constable to attend, at a specified time and place, an interview with the interviewing officer;

(ii) stating the reasons why the interview is required; and

(iii) informing the constable of the right to be accompanied at the interview by another constable selected by the constable; and

(b) send a copy of the notice to the countersigning officer.

(2) Subject to paragraphs (3) and (4), the interviewing officer is to be the reporting officer.

(3) The constable may, not later than 7 days (or such longer period as the reporting officer may specify) after the date on which the notice under paragraph (1) was sent, request by notice in writing to the reporting officer that the interview be conducted by the countersigning officer.

(4) If the reporting officer receives a notification mentioned in paragraph (3), the reporting officer must—

(a) where it is reasonably practicable for the countersigning officer to conduct the interview, arrange for the interview to be conducted by that person; or

(b) where it is not reasonably practicable for the countersigning officer to conduct the interview, arrange for another constable of the same rank as, or a higher rank than, the countersigning officer to conduct the interview.

Procedure at first interview

7.—(1) At the first interview, the interviewing officer must—

(a) explain why the reporting officer is of the opinion that the constable’s performance is unsatisfactory; and

(b) give the constable an opportunity to make representations in response.

(2) If, after considering any representations made by the constable, the interviewing officer is satisfied that the constable’s performance has been satisfactory, the interviewing officer must inform the constable that no further action is to be taken under these Regulations.

(3) If, after considering any representations made by the constable, the interviewing officer is satisfied that the constable’s performance has been unsatisfactory, the interviewing officer must give the constable a warning, informing the constable—

(a) as to the respect in which the constable’s performance is considered to be unsatisfactory;

(b) that an improvement in performance is required;

(c) of any specific action required to achieve that improvement; and

(d) that, if a sufficient improvement is not made within the period specified by the interviewing officer, the constable may be required to attend a second interview in accordance with regulation 9.

(4) The interviewing officer may, if it is considered appropriate, recommend that the constable seek assistance in relation to any matter affecting the constable’s health or welfare.

(5) The interviewing officer may adjourn the first interview to a specified later time or date if it appears necessary or expedient to do so.

Procedure following first interview

8.—(1) Not later than 7 days after the date of the conclusion of the first interview, the interviewing officer must—

(a) prepare a written record of the interview;

(b) send to the constable—

(i) a copy of that record; and

(ii) confirmation of the terms of any warning given under regulation 7(3); and

(c) inform the constable that the constable may submit to the interviewing officer written comments on the record of the meeting or on the terms of the warning (or both) not later than 7 days after the date on which they were sent.

(2) The interviewing officer may, on the application of the constable, extend the period specified in paragraph (1)(c) if it is considered appropriate to do so.

(3) The interviewing officer must send a copy of the record of the interview and any comments received from the constable to—

(a) the senior manager;

(b) a personnel officer;

(c) if the interview was conducted by the reporting officer, the countersigning officer;

(d) if the interview was conducted by the countersigning officer, the reporting officer; and

(e) if the interview was conducted by any other constable, the reporting officer and the countersigning officer.

PART 3 Second interview

Circumstances in which second interview may be required

9.    Where the reporting officer considers that the performance of a constable who was warned in accordance with regulation 7(3) has not improved sufficiently by the end of the period specified, the reporting officer may, with the agreement of the countersigning officer, require the constable to attend a second interview to discuss the constable’s performance.

Arrangement of second interview

10.  Where the reporting officer decides (with the agreement of the countersigning officer) to require the constable to attend a second interview, the reporting officer must—

(a) send a notice in writing to the constable—

(i) requiring the constable to attend, at a specified time and place, an interview with the senior manager and a personnel officer;

(ii) stating the reasons why the interview is required; and

(iii) informing the constable of the right to be accompanied at the interview by another constable selected by the constable; and

(b) send a copy of the notice to the countersigning officer, the senior manager and a personnel officer.

Procedure at second interview

11.—(1) The second interview is to be conducted by the senior manager and a personnel officer.

(2) At the second interview, the senior manager must—

(a) explain why the reporting officer and the countersigning officer are of the opinion that the constable has failed to make a sufficient improvement in performance; and

(b) give the constable an opportunity to make representations in response.

(3) If, after considering any representations made by the constable, the senior manager is satisfied that the constable’s performance has been satisfactory, the senior manager must inform the constable that no further action is to be taken under these Regulations.

(4) If, after considering any representations made by the constable, the senior manager is satisfied that the constable’s performance has been unsatisfactory during the period specified by the interviewing officer in pursuance of regulation 7(3)(d), the senior manager must give the constable a warning, informing the constable—

(a) as to the respect in which the constable’s performance is considered unsatisfactory;

(b) that an improvement in performance is required;

(c) of any specific action required to achieve that improvement; and

(d) that if a sufficient improvement is not made within the period specified by the senior manager, the constable may be required to attend an inefficiency hearing in accordance with regulation 13(1)(c).

(5) The senior manager may, if it is considered appropriate, recommend that the constable seek assistance in relation to any matter affecting the constable’s health or welfare.

(6) Where the constable is given a warning under paragraph (4), the constable must be informed that the chairing constable of an inefficiency hearing will have the power, if appropriate, to require the constable to resign from the Police Service or order a demotion in rank.

(7) The senior manager may adjourn the second interview to a specified later time or date if it appears necessary or expedient to the senior manager to do so.

Procedure following second interview

12.—(1) Not later than 7 days after the date of the conclusion of the second interview, the senior manager must—

(a) prepare, in consultation with the personnel officer, a written record of the interview;

(b) send to the constable—

(i) a copy of that record; and

(ii) confirmation of the terms of any warning given under regulation 11(4); and

(c) inform the constable that the constable may submit to the senior manager written comments on the record of the meeting or on the terms of the warning (or both) not later than 7 days after the date on which they were sent.

(2) The senior manager may, on the application of the constable, extend the period specified in paragraph (1)(c) if it is considered appropriate to do so.

(3) The senior manager must—

(a) retain with the record of the interview any written comments received on that record or on the terms of the warning; and

(b) send to the countersigning officer a copy of the record of the interview and any written comments on that record or on the terms of the warning.

PART 4 Inefficiency hearing

Assessment of performance following second interview

13.—(1) Not later than 14 days after the end of the period specified in pursuance of regulation 11(4)(d)—

(a) the reporting officer and the countersigning officer must assess the constable’s performance during that specified period;

(b) the constable must be informed in writing as to whether the reporting officer and the countersigning officer are of the opinion that there has been a sufficient improvement in the constable’s performance during that period; and

(c) where the reporting officer and the countersigning officer of the opinion that there has been an insufficient improvement in the constable’s performance, the constable must be notified of the requirement to attend, at a date and time to be specified, an inefficiency hearing to consider the constable’s performance.

(2) A notification given in pursuance of paragraph (1)(c) must inform the constable that the inefficiency hearing will take place not less than 21 days and not more than 42 days from the date of the notification.

Arrangement of inefficiency hearing

14.  Not less than 21 days before the date fixed for an inefficiency hearing, a written notice must be sent by the countersigning officer to the constable—

(a) requiring the constable to attend the inefficiency hearing at a specified date, time and place;

(b) stating the reasons why the hearing is required;

(c) informing the constable that the constable may be represented—

(i) either by an advocate or a solicitor; or

(ii) by another constable selected by the constable; and

(d) informing the constable of the disposals available to the chairing constable of the inefficiency hearing by virtue of regulation 18.

Procedure at inefficiency hearing

15.—(1) The deputy chief constable must appoint a constable of at least the rank of superintendent to act as the chairing constable at the inefficiency hearing.

(2) The chairing constable must be a person who has neither attended nor otherwise been involved with the first interview or the second interview.

(3) The chairing constable may appoint to assist the chairing constable at the inefficiency hearing—

(a) up to two other constables as assessors; and

(b) an advocate or a solicitor as a legal assessor.

(4) As soon as reasonably practicable after the appointment of the chairing constable, the deputy chief constable must arrange to be made available to the chairing constable any document which was—

(a) available to the interviewing officer in relation to the first interview;

(b) available to the senior manager in relation to the second interview; and

(c) prepared or submitted under regulations 12, 13 or 14.

(5) Subject to the following provisions of this regulation, the procedure at the inefficiency hearing is to be determined by the chairing constable.

(6) The inefficiency hearing is to be held in private.

(7) The chairing constable must give the constable the opportunity to make representations in relation to the matters mentioned in the notice sent under regulation 14.

(8) The chairing constable must prepare a written note summarising the proceedings at the inefficiency hearing.

(9) Subject to regulation 16, if the constable fails to attend the inefficiency hearing—

(a) where the chairing constable considers it just and appropriate to do so, the hearing may be proceeded with and concluded in the constable’s absence; and

(b) any part of the procedure described in these Regulations which cannot be complied with in the constable’s absence may be treated as if it had been complied with.

Postponement or adjournment of inefficiency hearing

16.—(1) Paragraph (2) applies where the constable—

(a) intimates to the chairing constable that the constable will be unable to attend the inefficiency hearing; or

(b) in the absence of such intimation, fails to attend the inefficiency hearing.

(2) Where this paragraph applies, the chairing constable may, if satisfied that there is a good reason for the non-attendance of the constable—

(a) postpone the hearing in the circumstances mentioned in paragraph (1)(a); or

(b) adjourn the hearing in the circumstances mentioned in paragraph (1)(b).

(3) The chairing constable may adjourn the inefficiency hearing if, having considered any representations made by the constable, the chairing constable considers it appropriate to allow a further period for the assessment of the constable’s performance.

(4) Where an adjournment is made for the purpose mentioned in paragraph (3), the chairing constable must—

(a) specify a period, not exceeding 3 months, during which the reporting officer and the countersigning officer are to further assess the constable’s performance;

(b) fix a date on which the inefficiency hearing will continue; and

(c) require the constable to attend on that date at a specified time and place.

(5) Not later than 14 days from the date on which the period for further assessment specified under paragraph (4)(a) ends—

(a) the reporting officer and countersigning officer must prepare a report containing their assessment of the constable’s performance during that period; and

(b) the countersigning officer must—

(i) send that report to the chairing constable; and

(ii) send a copy of that report to the constable.

(6) At the continuation of the inefficiency hearing the chairing constable must give the constable the opportunity to make representations in relation to the report mentioned in paragraph (5).

(7) Paragraphs (8) and (9) apply if, at the time the report mentioned in paragraph (5) is sent to the chairing constable—

(a) that constable is absent, incapacitated or suspended from duty; and

(b) it is likely that such absence, incapacity or suspension will continue for a period of more than 28 days from the date report is sent.

(8) Where this paragraph applies, the deputy chief constable must appoint another constable to act as the chairing constable at the continued inefficiency hearing (and the references in paragraph (6) and regulations 17 to 22 are to be read as including any constable so appointed).

(9) A constable appointed under paragraph (8) must be a constable who would have been eligible for appointment as chairing constable of the inefficiency hearing by virtue of regulation 15(1) and (2).

Determination

17.—(1) At the conclusion of the inefficiency hearing, the chairing constable must determine whether the constable’s performance has been satisfactory—

(a) during the period specified under regulation 11(4)(d); or

(b) where the hearing was adjourned under regulation 16(3), during the period comprising—

(i) the period specified under regulation 11(4)(d); and

(ii) the period specified under regulation 16(4)(a).

(2) Where it is considered necessary to do so, the chairing constable may defer the determination under paragraph (1) to a later time or date.

(3) The chairing constable’s determination must be recorded in writing and must, in a case where the constable’s performance has been determined to be unsatisfactory, state—

(a) the reasons for that determination; and

(b) any disposal ordered in accordance with regulation 18.

(4) The chairing constable’s written determination must, as soon as reasonably practicable, be sent to—

(a) the constable;

(b) the deputy chief constable; and

(c) a personnel officer.

Disposals

18.—(1) Where the chairing constable determines that the constable’s performance has been unsatisfactory during the period mentioned in regulation 17(1)(a) or, as the case may be, (b), the chairing constable may—

(a) require the constable to resign at a specified date;

(b) order the constable’s demotion in rank; or

(c) issue a written warning to the constable stating that—

(i) the constable’s performance is required to improve within a specified period; and

(ii) if, after consideration of the constable’s performance during that specified period in accordance with regulation 19, it is found that the constable’s performance has not improved sufficiently, the chairing constable may require the constable to resign.

(2) Where a disposal under paragraph (1)(a) is ordered and the constable fails to resign by the specified date, the constable is to be treated as having been dismissed from that date.

Assessment of performance following inefficiency hearing

19.—(1) This regulation applies where the constable has been given a written warning under regulation 18(1)(c).

(2) Not later than 14 days after the end of the period specified in the warning, the reporting officer and the countersigning officer must—

(a) assess the constable’s performance during that period;

(b) prepare a report on the constable’s performance;

(c) submit that report to the chairing constable;

(d) send a copy of that report to the constable; and

(e) inform the constable that written comments on the report may be submitted to the chairing constable not later than 7 days after the date on which the copy of that report was sent to the constable.

(3) The chairing constable must—

(a) consider the report and any written comments made by or on behalf of the constable; and

(b) if satisfied—

(i) that there has been an insufficient improvement in the constable’s performance, require the constable to resign within the period of 1 month beginning with the date on which notification of that requirement is made; or

(ii) that there has been a sufficient improvement in the constable’s performance, record that decision and direct that no further proceedings are to be taken under these Regulations.

(4) The chairing constable must record in writing the determination made under this regulation (including the reasons for that determination) and, as soon as is reasonably practicable, send a copy to—

(a) the constable;

(b) the deputy chief constable;

(c) a personnel officer;

(d) the countersigning officer; and

(e) the reporting officer.

(5) Where the chairing constable requires the constable to resign under paragraph (3)(b)(i) and the constable has not resigned by the end of the period of 1 month beginning with the date of the notification of that requirement, the constable is to be treated as having been dismissed with effect from the day after the end of that period.

(6) Paragraphs (7) and (8) apply if, at the time the report is sent to the chairing constable in pursuance of paragraph (2)(c)—

(a) that constable is absent, incapacitated or suspended from duty; and

(b) it is likely that such absence, incapacity or suspension will continue for a period of more than 28 days from the date the report is sent.

(7) Where this paragraph applies, the deputy chief constable must appoint another constable to act as the chairing constable under this regulation (and the references in regulations 20 to 22 to “the chairing constable” are to be read as including any constable so appointed).

(8) A constable appointed under paragraph (7) must be a constable who would have been eligible for appointment as chairing constable of the inefficiency hearing by virtue of regulation 15(1) and (2).

PART 5 Appeal to the chief constable

Appeal to the chief constable

20.—(1) Where a determination has been made by the chairing constable that the constable’s performance has been unsatisfactory, the constable may appeal to the chief constable against—

(a) that determination and the disposal ordered; or

(b) the disposal only.

(2) Where the constable has been required to resign under regulation 19(3)(b)(i), the constable may appeal to the chief constable against that requirement.

(3) An appeal under paragraph (1) or (2) is to be made by the appellant submitting to the chief constable, not later than 28 days after the date on which a determination was sent to the constable in pursuance of regulation 17(4) or, as the case may be, 19(4), a written notice of appeal specifying—

(a) the name and address of the appellant;

(b) that the notice is a notice of appeal;

(c) the date of the determination and disposal or, in the case of an appeal under paragraph (2), the date of the requirement to resign; and

(d) the grounds upon which the appeal is made.

(4) The appellant must sign the notice of appeal and send with it a copy of the written determination against which the appeal is made.

(5) A notice of appeal may be submitted late and such a notice may include—

(a) a request for the notice to be accepted late; and

(b) a statement of the reasons why it was not submitted on time.

(6) The chief constable may accept a late notice of appeal if satisfied that there are special circumstances which justify the appeal being submitted late.

Appeal procedure

21.—(1) Where the chief constable considers it necessary for the purpose of determining the appeal, the chief constable may fix an appeal hearing for the purpose of affording the opportunity of making oral representations to—

(a) the appellant; and

(b) the chairing constable.

(2) Where the chief constable fixes an appeal hearing, the chief constable must give reasonable notice of the date, time and place at which that hearing is to take place.

(3) The chief constable may appoint to assist the chief constable at the appeal meeting—

(a) up to two other constables as assessors; and

(b) an advocate or a solicitor as a legal assessor.

(4) At an appeal hearing—

(a) each of the appellant and the chairing constable may be represented by—

(i) another constable;

(ii) an advocate; or

(iii) a solicitor; and

(b) the chief constable (or any individual representing the chief constable) may put questions to the appellant and the chairing constable (or to any individual representing them).

(5) The chief constable may, where it appears necessary or expedient to the chief constable to do so, adjourn the appeal hearing and request the chairing constable to—

(a) provide further information relating to any matter arising from the chief constable’s consideration of the papers; or

(b) hold a further hearing in relation to those matters.

(6) Where the chief constable requests the chairing constable to hold a further hearing under paragraph (5)(b), the provisions of regulation 14 (except paragraph (d)), 15 (except paragraphs (1), (2) and (4)) and 16(1) and (2) apply to the hearing as they apply to an inefficiency hearing.

(7) The chief constable must not have regard to any information obtained by virtue of paragraph (5) unless—

(a) that information was available to the constable at the time of the inefficiency hearing; or

(b) the constable has been given an opportunity to make representations in relation to that information.

Determination of appeal

22.—(1) The chief constable must determine the appeal on the basis of—

(a) the written record of the chairing constable’s determination made in pursuance of regulation 17(3) and any papers referred to in that determination;

(b) in the case of an appeal under regulation 20(2)—

(i) the report prepared under regulation 19(2)(b);

(ii) any comments on that report submitted by the constable (or any person representing the constable); and

(iii) the written record of the chairing constable’s determination made in pursuance of regulation 19(4);

(c) the notice of appeal;

(d) any representations made by the constable at the appeal hearing; and

(e) any further information obtained following an adjournment of that hearing under regulation 21(5).

(2) The chief constable must—

(a) where it is reasonably practicable to do so, determine the appeal not later than—

(i) where no appeal hearing has been arranged, 7 days after the date on which the chief constable receives the notice of appeal; or

(ii) where an appeal hearing has been held, 7 days after the date of that hearing; or

(b) where it is not reasonably practicable to determine the appeal in accordance with sub‑paragraph (a), determine the appeal not later than—

(i) 28 days after the date on which the notice of appeal was sent; or

(ii) where the chairing constable has held a further hearing in pursuance of regulation 21(5), 7 days after the completion of that hearing.

(3) In determining an appeal under regulation 20(1), the chief constable may—

(a) if the appeal was made under sub-paragraph (a)—

(i) reverse the chairing constable’s determination that the constable’s performance has been unsatisfactory; or

(ii) vary the disposal;

(b) if the appeal was made under sub-paragraph (b), vary the disposal; or

(c) in either case, dismiss the appeal.

(4) Any variation by the chief constable of a disposal ordered by the chairing constable must not have the effect of ordering a disposal which is more severe than that ordered by the chairing constable.

(5) In determining an appeal under regulation 20(2), the chief constable must—

(a) confirm or quash the requirement to resign; and

(b) where the requirement to resign is quashed, substitute a disposal mentioned in regulation 18(1)(b) or (c).

(6) The chief constable’s determination is to be recorded in a notice—

(a) specifying the terms of the chief constable’s determination, including any variation of a disposal ordered by the chairing constable;

(b) giving reasons for that determination; and

(c) signed and dated by the chief constable.

(7) The chief constable must send a copy of the notice mentioned in paragraph (6) to—

(a) the appellant;

(b) the appellant’s representative (if any); and

(c) the chairing constable.

PART 6 Senior Officer Performance

Senior officer performance

23.  The Authority must establish and maintain—

(a) standards of performance for senior officers;

(b) procedures for the assessment of senior officers’ compliance with those standards; and

(c) procedures for the determination by the Authority of any case in which a senior officer’s compliance with those standards is in question.

PART 7 Revocation, savings and transitional provisions

Revocation, savings and transitional provisions

24.  The Schedule (revocation, savings and transitional provisions) has effect.

KENNY MACASKILL

A member of the Scottish Government

St Andrew’s House,

Edinburgh

21st February 2013