The Police Service of Scotland (Senior Officers) (Performance) Regulations 2016

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 at or above the rank of assistant chief constable (a “senior officer”) 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 sets out the representation to which a senior officer is entitled during the performance process. Regulation 5 specifies that meetings and hearings under these Regulations may take place when the senior officer does not attend and how the senior officer may be represented at those meetings and hearings.

Regulation 6 provides that the question of whether a senior officer’s performance is unsatisfactory is to be determined on a balance of probabilities.

Regulation 7 entitles the person conducting or chairing a meeting or hearing under these Regulations to consider documents notice of which has not been given in advance of that meeting or hearing.

Regulations 8 to 10 make provision about the “improvement periods” and “validity periods” to be specified in improvement notices given under these Regulations. Regulation 8 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 9(5)). A senior officer’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 8 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 9 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 10 allows for improvement and validity periods to be suspended where the senior officer is absent from duty for 4 weeks or more.

Part 2 establishes the first stage in the performance process, known as “performance meetings”. Regulation 11 permits a senior officer’s reporting officer to refer the senior officer to such a meeting if the senior officer’s performance is considered to be unsatisfactory.

Where a senior officer is referred to a performance meeting, regulation 12 sets the process for arranging that meeting. The reporting officer must sent a notice to the senior officer requiring attendance at the meeting specifying, among other things, the respect in which the senior officer’s performance is considered unsatisfactory. Regulation 12 also establishes a process for the senior officer and the reporting officer to agree a date and time for the meeting.

The procedure at a performance meeting is set out in regulation 13, including provision about who may attend that meeting, the right of the senior officer (and any person representing the senior officer) to make representations and notifying the senior officer of the decision as to whether the senior officer’s performance is unsatisfactory.

Regulation 14 provides for what is to happen following a performance meeting. In particular, the reporting officer must send a record of the meeting to the senior officer and, where the senior officer’s performance has been found to be unsatisfactory, prepare and send to the senior officer a first improvement notice. The senior officer must also be informed of the right to appeal and the procedure for making an appeal. Regulation 15 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 16. That appeal may be made against the finding of unsatisfactory performance or against certain terms of the first improvement notice. Regulation 16 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. Under regulation 17 an appeal made by an assistant chief constable must be determined by the chief constable and may be determined with or without holding an appeal meeting. Where a meeting is required, regulation 18 sets out the relevant procedure. Under regulation 19 an appeal by a deputy chief constable or the chief constable must be determined by a panel appointed by the Scottish Police Authority (“the Authority”) for that purpose and that regulation specifies who may be appointed to such a panel. Again, the appeal may be determined with or without a meeting. Where a meeting is required, regulation 20 sets out the relevant procedure. Regulation 21 sets out how all appeals are to be determined, including the evidence that the person determining the appeal must consider, what action may be taken where an appeal is upheld and what must be done after the determination of the appeal.

Part 3 makes provision about the monitoring of the senior officer’s performance following the first stage in the process.

Regulation 22 requires the senior officer’s reporting officer, at the end of the first improvement and validity periods, to decide whether the senior officer’s performance has been satisfactory during those periods. If it has not been satisfactory, the senior officer 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 senior officer’s performance is considered to be unsatisfactory, a final improvement notice must be given. The content of that notice is specified in regulation 26.

Part 4 sets out what is to happen at the end of the improvement and validity periods set out in the final improvement notice. Regulation 27 requires the senior officer’s reporting officer to assess the senior officer’s performance at the end of the final improvement period and validity period specified in the final improvement notice. If the senior officer’s performance has been unsatisfactory, the reporting officer must refer the senior officer to a performance hearing.

Regulation 28 requires the Authority to appoint a panel to conduct a performance hearing. The membership of the panel will differ depending on whether the senior officer in question is an assistant chief constable, a deputy chief constable or the chief constable and regulation 28 makes detailed provision about who must be appointed to sit on each panel.

Regulation 29 provides that the Authority must send a written notice requiring the senior officer to attend a performance hearing. Not more than 20 working days from receipt of that notice, the senior officer must respond in writing indicating whether it is accepted that the senior officer’s performance has been unsatisfactory (regulation 30). Regulation 31 sets out a process for agreeing a list of witnesses to appear at the performance hearing and regulation 32 details the timescales within which such a hearing must take place. A performance hearing may be postponed or adjourned by the chairing member of the panel in accordance with regulation 33.

Regulation 34 specifies who may attend a performance hearing and requires the senior officer, or a person representing the senior officer, to be given the opportunity to make representations.

At the end of the performance hearing the panel must decide whether or not the senior officer’s performance is unsatisfactory and give written notice of that decision and any disposal ordered (regulation 35). Regulation 36 sets out the disposals available which include dismissal, demotion and extension of the final improvement notice.

Regulation 37 sets out a further process for assessment of the senior officer’s performance where a final improvement notice has been extended. This includes referral to a further performance hearing where the senior officer’s performance remains unsatisfactory. The arrangement of and procedure at a further performance hearing are set out in regulations 38 and 39 and are similar to those relating to an initial performance hearing.

Part 5 makes a number of consequential and other minor amendments to the Police Appeals Tribunal (Scotland) Rules 2013 and the Police Service of Scotland Regulations 2013, as well as revoking regulation 23 of the Police Service of Scotland (Performance) Regulations 2013.