Disabled police officers have understandably become increasingly concerned about their employment status following the police pay and conditions reviews conducted by Sir Tom Winsor. Fitness testing, Limited Duties and Capability Dismissal are all new concepts which appear to disadvantage disabled officers when compared to other protected characteristics.

However, the imbalance could be slightly redressed if only Sir Tom Winsor’s review was revisited, to ensure important elements haven’t been over looked, possibly inadvertently, hopefully not intentionally.

To illustrate my point, we should look at Recommendation 39 and the supporting evidence within the review. Winsor rightly identified the current situation of ‘restricted officers’ could be untenable, with too many officers on restricted duties and crucially, not enough officers receiving an ill health retirement pension.

At the time of writing his review, Winsor identified that although the National Policing Plan for 2003-2006 required a reduction in the number of officers being retired through ill health grounds, the target was still set at 6.5 retirements per 1000 officers, a figure set by the Government Actuaries Department. However, his research revealed that forces were only retiring on ill health grounds at a rate of 2.2 retirements per 1000 officers, significantly less than the recommended level.

One of the biggest changes to police pay and conditions over the past 5 years has undoubtedly been the changes to police officer pensions. For this to happen, pension regulations would have been reviewed, consulted on and eventually re-written. The ill health retirement process sits firmly within pension regulations for all three pension schemes, and so it is conceivable that as part of the pensions review, ill health retirement would have also been reviewed.

So what changes occurred to Ill health retirement regulations? What instructions have been given to Chief Officers about retiring more officers on ill health grounds? What review took place of the Selected Medical Practitioner and Police Medical Appeals Board Process?

As far as I can tell the answer appears to be none.

In which case the next question is: why is change needed?

Simple: as a Federation rep I have had the responsibility of representing and advising officers on ill health retirement and appeals processes. My usual advice to officers wanting to seek ill health retirement is this: Your chances of success are low – around about 25% presently. There is little point trying for an ill health retirement pension unless you have tried every possible treatment available for your condition, in order to be considered as permanently disabled. Even if your own GP or consultant hasn’t recommended or even offered the treatment, because you can guarantee the SMP or Appeal Board will deny you are permanently disabled without having tried it. This can often be in spite of the fact your own specialist is infinitely more qualified in that particular field of medicine than those assessing your case.

Even having exhausted every possible pill, experimental therapy and ancient tribal medicine from the far reaches of Peru, your chances of being deemed as having a permanent disability and therefore eligible for ill health retirement, are still only as good as a flutter on a roulette wheel.

Capability Dismissal is now being pitched as a tool that will be used on the ‘minority of officers’, to plug a gap that exists where officers are not eligible for ill health retirement. It is being claimed that only a mere fraction of disabled officers will be affected.

This I am sure, is said with absolute belief in this statement; however, unless the ill health pension implications above are fully understood, reviewed and rectified, this will absolutely not be the case. In fact, there is potential in the future for this to apply to the ‘vast majority’ of disabled officers if the ill health retirement process is not reviewed, especially as it will become the cost effective follow-up to ill health retirement, either intentionally or not.

If ill health retirement rates remain at approximately 25% success rate (PFEW estimations), the other 75% of officers who are unsuccessful will surely be walking the lonely trail into the deep dark depths of dismissal from the police service. It is not inconceivable that 100% of those officers will be disabled.

The cynicism in us all led us to assume that ‘X factor’ pay reductions were just another tool to help Forces to save money, by cutting the wages of disabled officers. It is now becoming clear that for every £1 a force saves in doing this, they are likely to have to pay out several times that amount in defending litigation, so not really the money saving tool some may have hoped for.

Our focus must now turn to the second half of the Limited Duties regulations, Capability Dismissal. This equally contentious concept is already undergoing consultation, a process that the Disabled Police Association has a front row seat at, that will soon draw to a close once final proposals are taken to the Police Arbitration Board (PAB) for final sign-off within the coming months.

Requests have been made on more than one occasion to review the ill health retirement process.

This is where the real threat lies to disabled officers. At least with an ‘X factor’ pay reduction, ‘they’ only manage to chew off a small piece, but you still manage to get away to fight another day. You will still have a job. It may require some very tough lifestyle changes, but for most it will be achievable.

Capability Dismissal on the other hand would see you dismissed from your Force on the grounds of your ‘capability’ to perform the role of the office of Constable, having not been eligible for ill health retirement.

If ill health retirement isn’t addressed soon, Capability Dismissal won’t just chew a piece off – it will swallow you whole.

DPA National Secretary

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”