The Police Service of Scotland (Performance) Regulations 2014

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations provide for the procedures for dealing with cases where the performance of a constable of the Police Service of Scotland below the rank of assistant chief constable (who has completed their probationary period) is considered to be unsatisfactory.

Part 1 makes general provision. Regulations 1 to 3 make provision about the commencement, interpretation and application of the Regulations. Regulation 4 revokes the majority of the Police Service of Scotland (Performance) Regulations 2013 dealing with police performance and makes transitional provision in relation to that revocation. Regulation 5 requires the chief constable to designate a deputy chief constable to carry out functions under the Regulations and authorises that deputy chief constable to delegate those functions to other constables of the rank of sergeant and above.

Regulation 6 sets out the representation to which a constable is entitled during the performance process. Regulation 7 specifies that meetings or hearings under these Regulations may take place when the constable does not attend and how the constable may be represented at those meetings and hearings.

Regulation 8 provides that the question of whether a constable’s performance is unsatisfactory is to be determined on a balance of probabilities.

Regulation 9 entitles the person conducting or chairing a meeting or hearing under the Regulations to consider documents notice of which has not been given in advance of that meeting or hearing.

Regulations 10 to 12 make provision about the “improvement periods” and “validity periods” to be specified in improvement notices given under these Regulations. Regulation 10 requires every improvement notice to specify an improvement period and a validity period. Those periods must be no more than 12 months (although a validity period may be extended beyond 12 months if the associated improvement period is extended – regulation 11(5)). A constable’s performance must improve by the end of the improvement period and that improvement must be maintained until the end of the validity period. Regulation 10 also makes provision about when a validity period must start and end and in particular provides that such a period must end on or after the date on which the associated improvement period ends.

Regulation 11 allows for improvement and validity periods to be extended. An extended improvement period must not exceed 12 months in total, while an extended validity period may exceed 12 months. Regulation 12 allows for improvement and validity periods to be suspended where the constable is absent from duty for 4 weeks or more.

Part 2 establishes the first stage in the performance process, known as “performance meetings”. Regulation 13 permits a constable’s first line manager to refer a constable to such a meeting if that constable’s performance is considered to be unsatisfactory.

Where a constable is referred to a performance meeting, regulation 14 sets the process for arranging that meeting. The line manager must send a notice to the constable requiring attendance at the meeting specifying, among other things, the respect in which the constable’s performance is considered unsatisfactory. Regulation 14 also establishes a process for the constable and the line manager to agree a date and time for the meeting.

The procedure at a performance meeting is set out in regulation 15, including provision about who may attend that meeting, the right of the constable (and any person representing the constable) to make representations and notifying the constable of the decision as to whether the constable’s performance is unsatisfactory.

Regulation 16 provides for what is to happen following a performance meeting. In particular, the line manager must send a record of the meeting to the constable and, where the constable’s performance has been found to be unsatisfactory, prepare and send to the constable a first improvement notice. The constable must also be informed of the right to appeal and the procedure for making an appeal. Regulation 17 makes provision about what must be contained in a first improvement notice.

The process for appealing the decision taken at a performance meeting is set out in regulation 18. That appeal may be made against the finding of unsatisfactory performance or against certain terms of the first improvement notice. Regulation 18 also sets out the grounds on which an appeal can be made and specifies that the appeal must be made by submission of a written appeal notice. An appeal is to be determined by the constable’s second line manager and may be determined with or without a further meeting. Where a meeting is required, regulation 19 details how that meeting is to be arranged and the procedure at that meeting is set out in regulation 20. Regulation 21 specifies the way in which the second line manager must decide the appeal, whether or not a meeting takes place.

Part 3 makes provision about the analysis of the constable’s performance following the first stage in the process.

Regulation 22 requires the constable’s line manager, at the end of the first improvement and validity periods, to decide whether the constable’s performance has been satisfactory during those periods. If it has not been satisfactory, the constable must be referred to a progress meeting to consider the matter further.

Regulation 23 makes provision as to how the progress meeting is to be arranged. Regulations 24 and 25 make provision as to the procedure at and following that meeting respectively. The process is broadly similar to that for performance meetings.

Where, at a progress meeting, a constable’s performance is considered to be unsatisfactory, a final improvement notice must be given. The content of that notice is specified in regulation 26.

As with performance meetings, the outcome of a progress meeting can be appealed by the constable. Regulations 27 to 30 make provision as to how an appeal is to be lodged, what can be appealed against, the arrangement of an appeal hearing (if needed), the procedure at such a meeting and the way in which an appeal is to be determined.

Part 4 sets out what is to happen at the end of the improvement and validity periods set out in a final improvement notice.

Regulation 31 requires the constable’s line manager to assess the constable’s performance at the end of the final improvement period and validity period specified in the final improvement notice. If the constable’s performance has been unsatisfactory, the line manager must refer the constable to a performance hearing.

Where a constable has been referred under regulation 31, regulation 32 requires the deputy chief constable to appoint another constable of at least the rank of superintendent (and of a rank higher than the constable) to act as chairing constable at the performance hearing. The deputy chief constable may in addition appoint advisers to advise the chairing constable at that hearing. The constable has a right to object to any person appointed under this regulation.

Regulation 33 requires the constable’s senior manager to send a notice in writing requiring the constable to attend a performance hearing. Not more than 20 working days from receipt of that notice, the constable must respond in writing indicating whether it is accepted that the constable’s performance has been unsatisfactory (regulation 34). Regulation 35 sets out a process for agreeing a list of witnesses to appear at the performance hearing and regulation 36 details the timescales within which such a hearing must take place. A performance hearing may be postponed by the chairing constable in accordance with regulation 37.

Regulation 38 provides that the performance hearing must be conducted by the chairing constable, specifies who may attend that hearing and requires the constable, or a person representing the constable, to be given an opportunity to make representations.

At the end of the performance hearing, the chairing constable must decide whether or not the constable’s performance is unsatisfactory and give written notice of that decision and any disposal ordered (regulation 39). Regulation 40 sets out the disposals available, which include dismissal, demotion and extension of the final improvement notice.

Regulation 41 sets out a further process for assessment of the constable’s performance where a final improvement notice has been extended. This includes referral to a further performance hearing where the constable’s performance remains unsatisfactory. The arrangement of and procedure at a further performance hearing are set out in regulations 42 and 43 and are similar to those relating to an initial performance hearing.

Part 5 makes provision about appealing the outcome of a performance hearing.

Regulation 44 provides that the constable may appeal against a finding at a performance meeting of unsatisfactory performance and any disposal ordered and sets out the grounds of appeal. An appeal is to be made by submission of a written appeal notice.

Regulation 45 requires an appeal to be determined by a constable of the rank of assistant chief constable or above appointed for that purpose by the deputy chief constable. The person determining the appeal must decide whether to hold an appeal hearing for that purpose. If a hearing is required, a notice must be sent requiring the constable to attend such a meeting.

Regulation 46 specifies the possible outcomes of an appeal. These include confirmation or reversal of the finding of unsatisfactory performance, confirmation of the disposal ordered or the ordering of a less severe disposal. The outcome must be notified to the constable in writing no more than 90 working days from the date the appeal notice was submitted.

Part 6 contains consequential modifications to the Police Service of Scotland Regulations 2013 and the Police Appeals Tribunal (Scotland) Rules 2013. These modifications update references in those instruments to the now revoked Police Service of Scotland (Performance) Regulations 2013.