Limited Duties: the answers you have been looking for

As with all of the Executive Committee members of the DPA, much of our work is carried out in our own time, with a little duty time provided by Forces.

This presents us with several challenges which has led to a few failings on our part, which I would like to apologise for upfront.

With an executive team of nine for the whole country and very limited time with busy day jobs, we often forget to do the most important thing of all – update you on the things which matter to you the most.

It’s easier to find the time to do something than it is to write about it!

I have no doubt that the things that matter the most to disabled officers right now are covered below (because this is all I get asked about):

1. Fitness testing
2. Limited Duties
3. Capability Dismissal

Numbers 2 and 3 are my portfolio areas, so it is about time I let you know what has been going on and answer some high level burning questions.

I promise you, it is not the case that I haven’t been doing anything, but rather, I work so hard representing our members, that I struggle to find enough time to tell you about it! That’s a development area for my PDR!

So, here are some common questions I get asked and the best answers I can give you to hopefully provide some reassurance:

Question: Has anyone had a pay reduction yet using the ‘X’ factor calculation?

No. To the very best of my knowledge, no one in the Country in any police force has yet sustained a pay reduction using Limited Duties Regulations.

The two leading forces on the implementation timeline, TVP and the Met, have both declared they will not be making pay reductions at the end of year 1 (12 month management review).

Both forces have reached, or are close to reaching the 12 month review, but will NOT be making pay reductions at this time.

Question: Why are pay reductions not yet being made?

In simplest terms, before any pay reduction can be applied, the force must first prove that the officer (who is not fully ‘deployable’) is having an affect on ‘overall force resilience’ (a requirement strongly championed by PFEW – well done guys!). However, forces are struggling to find a way to evidence this and so NPCC are asking for this requirement to be removed or at the very least relaxed.

This has been met with STRONG opposition from the DPA, supported by PFEW and is still currently being discussed.

Question: Are pay reductions even legal?

Not sure.

Early Home Office and PFEW legal advice seemed to suggest that pay reductions are legitimate.

I am not so sure now. Check out the EAT decision in G4S Cash Solutions (UK) Ltd v Powell (UKEAT/0243/15) – the ruling in this case suggests to me that pay reductions for disabled officers will not be legitimate.

I am aware of several disability lawyers queuing up to take on the pay reductions head on, and I will be meeting some of them in the coming weeks, so watch this space.

Question: What can I do to prevent a pay reduction in the first place?

I can’t guarantee you won’t get a pay reduction, but I can give you my advice on how to reduce the chances and how to prepare yourself with evidence of discrimination where necessary.

The reason I look at this from an evidence gathering point of view is because I, like many of you, have seen too often the opportunities denied to disabled officers and the pure ignorance some people have of the Equality Act, so I know there will be times when you have to fight your corner. So it is best to stock up the arsenal!

When trying to negate a pay reduction the most important thing you need to remember is this: PERSONAL RESPONSIBILITY.

Having a disability doesn’t mean that we are owed something, it merely means we must be supported when we are disadvantaged over others.

NO-ONE else at work will care whether or not you will sustain a pay reduction. Therefore, this is all about YOU and what YOU CAN DO to prevent it from happening to YOU. Do this by using that lever of support you are entitled to (reasonable adjustments).

Here are some important things to note and act upon:

1. Deployability – pay reductions are all about how ‘deployable’ you are. Do everything you can to make yourself more deployable. Seek an alternative role, seek more skills, more qualifications – anything that makes you a more valuable resource to the Force and the public. (This may even improve your job satisfaction!)

A really important thing the DPA managed to get into the Limited Duties guidance is the importance of retraining and up-skilling – because these are legitimate reasonable adjustments. If your force hasn’t offered additional training and up-skilling that could make you more deployable, then it will be hard to legitimately justify a pay reduction, as they will have failed to make reasonable adjustment.

But remember – the chances are your Force won’t just offer you an opportunity out of the blue – YOU will have to seek it! Maybe even put yourself out a little.

2. Use your PDR – these are perfect records to evidence your skills and your development needs. Write all over them about the skills you want to obtain and how you can increase your deployability. Is your line manager, second line manager or even your Command team really going to turn you away when you are telling them you can do more for them, the force and the public???

Well, possibly yes. I am a realist. But more fool them if they do – because now you are starting to gather…

3. Evidence, evidence, evidence!

Put all requests in writing (or email) keep a copy. Get all replies in writing – keep a copy.

After a while it all adds up to create a big picture about whether or not you are being treated fairly and whether adjustments are being made to accommodate you.

4. Seek help – if you are unsure on any of the above speak to your DPA rep (local Force disability support networks may go under a different name), Fed rep or just someone who knows how to help. There are plenty of people out there to support you.

5. DON’T GIVE UP – Anyone with a disability knows that almost anything is possible if you want it hard enough.

Question: Can I be sacked from the Force because of Limited Duties?

No… Not yet anyway.

Capability Dismissal is the second instalment of Limited Duties, but it isn’t here yet.

This is currently sitting with Home Office Lawyers to draft the regulations to be taken to the Police Advisory Board for sign off.

However, this is not likely to happen until the new year.

Question:- How can I be capability dismissed?

Capability dismissal is being implemented to give forces a tool to cease the employment of officers who are so severely limited in terms of their ‘deployability’ that there are no roles in the force that can accommodate that individual.

It is expected by the Home Office and NPCC that this will only apply to a very limited number of individuals.

I am sceptical and this is why:

Capability dismissal can only occur 12 months after an ‘X’-Factor pay reduction.

Before dismissal, all reasonable alternatives must have been exhausted (adjustments, redeployment, retraining etc) which includes consideration for ill health retirement. You CANNOT be dismissed if you have not yet been considered for ill health retirement.

My concern comes with the inconsistency in which IHR is applied across the country. I can foresee many officers who should be retired under ill health, receiving a poor decision and not being retired, but then being dismissed under Capability Dismissal instead.

(I want to assure you at this point that I take every opportunity available to lobby officials and Chief Officers that Winsor’s report actually stated that the imbalance of ill health retirement and ‘restricted duties’ should be addressed. However, the only thing that appears to have been addressed so far is too many ‘restricted’ officers. Winsor’s observations that too few officers are being ill health retired haven’t yet been addressed. We MUST continue to raise this point until IHR is given due consideration for review).

Question: Is capability dismissal lawful?

I don’t know. No one does yet.

On an individual basis, depending on how the rest of Limited Duties regulations are applied – it could possibly be unlawful if you have been discriminated against throughout the rest of the process.

On the whole, is capability dismissal discrimination in itself? I am not sure. Parallels have been drawn by officials with other professions and even police support staff who can be dismissed in similar circumstances – so, it is possible that it is legitimate… unless it is discriminatory due to disability…

When regulations are drawn up, we will seek legal opinion, but I suspect this will need to be determined at tribunal.

Conclusion: If there are any further questions which you feel are not addressed by the above article, please email your questions using the contact form and I will do my best to answer them. Follow us on Twitter for the latest updates.

Jamie Mills
DPA General Secretary

The above article represents personal opinion and not necessarily the opinion of the DPA in its entirety. All information provided above is with the intention of providing individuals with a greater understanding of Limited Duties and Capability Dismissal and provides advice based on the author’s personal opinion and knowledge. The above information is correct to the best knowledge of the author, but complete accuracy of the content cannot be guaranteed.