Andy Garrett, DPA Vice-Chair comments on the Police Arbitration Tribunal & Home Secretary decisions on the ‘X-factor’ deployability element of pay

We note with dismay there is no reference in the PAT judgement, Home Secretary letter and subsequent circulars from Federation to the employers Equality Act (impact assessment & reasonable adjustment) duties in cases of protected characteristic (disabled) officers on restricted duty – i.e. exploring avenues of reasonable alternative deployment & re-training to enable their wider ‘deployability’ before moving to reduce pay.

We believe that this change in regulations would amount to a provision, criterion or practice (PCP) which places disabled officers at a substantial disadvantage to non-disabled officers. We believe the employer would have to either:

Make reasonable adjustments in order to eliminate or mitigate the disadvantage – OR – Objectively justify on a case by case basis the PCP as a ‘proportionate means of achieving a legitimate aim’. 

Reasonable adjustments should be explored first, such as interventions aimed at enabling the disabled person to do their job, or if not possible, a reasonable alternative job. –  That is the job of a ‘deployable’ police officer whatever that is determined as.   

As seen in other equality act tribunal judgements, (such as the recent ruling in which A19 as used in those forces, amounting to indirect age discrimination), forces would be opening unnecessary legal challenge in cases where decision makers (line managers) are permitted to jump to punitive sanction in disability cases (UPP or pay cut), before fully exploring reasonable alternatives or adjustments aimed at enabling/supporting the officer to reach the required standard (of deployability).

It is not in the spirit of engagement where “in-Force” communications on such emotive topics are prepared & published without proper consultation with disabled officers (through disability staff networks) as to wording & content.

In terms of national guidance, we continue to lobby and encourage the College of Policing to fully consider reasonable adjustments which would enable wider ‘deployability’ & support for disabled officers to reach a position where they meet whatever criteria comes into in the deployability assessment

The Disabled Police Association is further dismayed at the lack of stated commitment in communications on this subject to consult and engage directly with disabled/restricted officers, especially at this time when the federation position is weakened. This is particularly evidenced in the equality & diversity section of the Royal Society of Arts review of Police Federation of England and Wales. We will vigorously challenge the robustness of consultation on this topic if it takes place about us, without involving us in some way. Disabled people are too often left with the impression that non-disabled people in influential positions feel they know what is right for us and can talk on our behalf,.

If the police service cannot value, support and creatively enable their own to contribute fully and effectively in the ways they can, to execute the office of constable, how can we aspire to reflect the diversity of our UK population?

Or is the Police Service going to continue limiting overt commitment only to visible diversity?

We would remind colleagues that should they experience any inappropriate management or colleague behaviour referencing this emerging new assessment and reform to officer pay, they should take steps to secure hard evidence of it (inappropriate behaviour & assumptions) and be further reminded of their entitlement to make use of the in-Force formal grievance process in writing, or other legal remedy seeking to address evidence of unfair, inappropriate or discriminatory treatment.

Local Disability Network representatives will always work towards engagement and resolution in disputes within the resources available to them, but would rather colleagues didn’t make ill-informed assumptions, judgements & actions which could give rise to formal process.

Let us focus on helping people do the job and not punish them for becoming (not by choice) a member of the 1 in 6 people who will become disabled during working life.

The Disabled Police Association is doing everything it can to work with the Police Federation and police employers to support effective discharge of their statutory functions and equality obligations.

DPA Vice-Chair Andy Garrett’s recent communication to Metropolitan Police Disability Staff Association members and Intranet communication. This communication will explain the wider picture at present in relation to the recent decision made by the Home Secretary.

“DSA members,

Below is our DSA response at this time, to the growing number of understandable enquiries on this subject from members. Apologies that I (Andy Garrett) am unable to give a personalised response to every similar enquiry. As you can imagine I am inundated and don’t have unlimited time for this important work on behalf of restricted officers.

Of course there are and will be lots of questions, as this proposal develops and perhaps comes into the reality of a formal (deployability assessment) process in each police force. To date with the limited evidence of federation support & comms in this space, DSA & DPA are working extremely hard as you see below.

Clearly more volunteers need to step forward to help us with the wider programme of activity (supporting getting this right and fair if it is indeed implemented) that we are engaged with at Met & National level.

Your enquiry on this topic echoes some of the many questions DSA/DPA have been raising at strategic levels ever since the Winsor report & its recommendations were published & we continue to lobby at every level in the interests of fairness and equality act compliance. These issues are far more complex than the simple x-factor recommendation wording that is causing so much concern & we believe, based on our understanding of the legal issues, that the scope & application in practice if this is brought into regulations, may not be as broad as feared.

Forces will have to show much more evidence on a case by case basis of their supporting action (through reasonable adjustments) aimed at enabling restricted officers wider deployability, before they could objectively justify a move to reduce pay. There are still many options open to forces to improve officer deployability that have not to date been properly explored.

DSA & our national affiliate DPA sadly have no funding at all other than that funding our full time advisor role in the Met (even this is under review). We hold no budget so are unable to pay for counsels legal advice, leaving this route as the premise of the federation who we all know from reading the RSA review (of PFEW), are still somewhat lacking with regard to supporting disability. We hope this position will improve if PFEW take up RSA recommendations to engage effectively with Staff Support Associations

As Met DSA Chair & Vice-Chair of the (national) Disabled Police Association I am working with the Chief Exec of the Business Disability Forum & their legal director to put forward proposals to ACPO & College of Policing around improving the approach to managing disability in the police service. Our joint paper on this subject should be submitted today.

Please be assured DSA & DPA will do everything we can to ensure appropriate support is given to restricted officers and that adjustments are rightly explored to enable effective ‘deployability’ whatever that comes to be defined as. We have tabled the potential risks attached to this reform and yet still we anticipate a spike in litigation cases challenging this action if it is brought into being (on a case-by-case basis) and disabled officers suffer a cut in pay which may not be ‘objectively justified’ as a ‘proportionate means of achieving a legitimate aim’.

Kind regards

Andy Garrett”