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50 | 13.04.2017
Following the recent Judgment in the High Court in respect of the injunctive proceedings brought by HMPPS, we write to confirm that you should work normally, in accordance with your contracts of employment and reasonable instructions given by management. S.127 Criminal Justice and Public Order Act 1994 prohibits the POA (or anyone else) from inducing, authorising or supporting you to withhold your services as a prison officer or take any action that would put at risk the safety of any person or to commit a breach of discipline.
This Circular is intended to be the POA’s guidance to you as to how you should conduct yourself following the above Judgment.
1. Lawful Orders
You are only obliged to follow lawful orders. If you are given an unlawful order, i.e. one which would involve you breaking the law or being complicit in the Governor or someone else breaking the law, you should refuse to follow that unlawful order and inform the person giving the order why. You should also report the giving of an unlawful order to the Governor of your establishment, HMPPS Employee Relations Section, the Wrong Doing Line and the DDC for your establishment, ensuring that you copy all the papers to your NEC representative and local committee.
2. Contractual Duties
Subject to the first paragraph above you are only obliged to do what your contract of employment requires you to. If you are given an instruction to do something which you believe your contract of employment does not require you to do, you should object, tell the manager concerned that you are not contractually obliged to carry out the instruction but that you will comply with it under protest. You should discuss this with your local committee, who can then also take advice from Head Office if needed, and who can give advice as to whether the instruction is within or is outside your contractual obligations. If the instruction is outside your contractual obligations, you should then lodge a grievance setting out exactly what happened, what was said and why you believe the instruction was outside your contract of employment.
3. Payment Plus
PSI 24/2008 provides;
Para 7 “Volunteers will always be sought in the first instance but where insufficient volunteers are available Bulletin 8 procedures will apply”.
The POA’s advice is that if you are instructed to undertake payment plus without volunteers first having been sought you should:
INFORM MANAGEMENT THAT YOU WILL UNDERTAKE THE WORK UNDER PROTEST BUT THAT MANAGEMENT ARE IN BREACH OF THE PSI AND YOU WILL PUT IN A GRIEVANCE AND REPORT THE MATTER TO THE UNION.YOU SHOULD ALSO INFORM YOUR LOCAL COMMITTEE AND SEEK GUIDANCE ON ANY LOCAL AGREEMENTS THAT ARE IN PLACE.
Para 8 “Where payment plus additional hours are available, Governors must ensure that flexible systems are put in place to allow staff to choose when they wish to work (subject to paragraph 7). This will require local systems to be put in place to ensure predictable forecasting to maintain operational delivery.”
The POA’s advice is that if you have agreed to work payment plus but there are no flexible systems in place to allow staff to choose when they wish to work you should take the actions set out in BLOCK CAPITALS above.
Para 9 The PSI gives you the right to opt out on the giving of 28 days’ notice.
The POA’s advice is that if you do not wish to work payment plus you are entitled to opt out. If management place you under pressure regarding opting out you should take the actions set out in BLOCK CAPITALS above.
Para 9 The PSI provides that under exceptional circumstances Governors may allow individuals to withdraw immediately from payment plus e.g. “where urgent domestic issues require”.
The POA’s advice is that if you make such a request and are refused you should take the actions set out in BLOCK CAPITALS above.
Para 13 “Payment Plus hours will not be used to cover temporary staff shortfalls caused by sickness, annual leave or training.”
The POA’s advice is that if you are instructed to undertake payment plus to cover these shortfalls you should take the actions set out in BLOCK CAPITALS above.
4. Use of Force
We have previously given concise Guidance on this subject in POA Circular 110/2015 (Guidance Attached). HMPPS have raised no objection to that Circular so it is reasonable to conclude they are happy with it. All members should familiarise themselves with the Guidance and follow it.
5. Detached Duty
In their Clarification Note of 3.6.16 HMPPS state at para 5 “Staff selection will be underpinned by the principle that we should take all reasonable steps to avoid compelling staff to attend on DD where staying away from home overnight is required.”
NOMS have also stated in writing “…we will not tolerate any coercive or other inappropriate behaviours by managers when seeking volunteers for detached duty, and that disciplinary processes would be followed in appropriate circumstances.”
The POA’s advice is that if you are instructed to undertake detached duty and the above procedures have not been adhered to you should inform management that you will undertake the work under protest but that management are in breach of the above HMPPS clarification and statement and you will put in a grievance and report the matter to the Union.
In addition, you should point out to the manager instructing you to undertake detached duty if you have a particular reason for not wanting to do detached duty, for example, your child care arrangements or the health of yourself or somebody you care for. If you are ordered to go on detached duty, then you should inform management that you will undertake the work under protest but that management are in breach of the HMPPS clarification and the NOMS statement and probably the Equality Act and you will put in a grievance, report the matter to the Union and consider legal action.
6. First Aid
The NEC has been in dialogue with HMPPS through the HR and H&S Whitley Sub Committees for more than a year in an attempt to ensure adequate numbers of first aiders are on duty at any time. HMPPS has refused to introduce any allowance for this work and have maintained that they have sufficient volunteers. The NEC has maintained that the role of first aiders needs to be included in member’s job descriptions and subject to Job Evaluation and a payable allowance or uplift in pay to ensure all workplaces are safe.
PSI 29/15 provides at para 2.16 “In HMPPS the role of First Aider is voluntary.”
The above means that if you do not wish to carry out the role of First Aider you should inform management. If you have previously volunteered to perform the work of a first aider whilst on duty and no longer wish to continue with this work you should advise management and set out your reasons. If they then instruct you to carry out the duty you should take the actions set out in BLOCK CAPITALS above.
7. Finishing Times
NOMS provided clarity on their policy on finishing times in a letter from The Director of Public Service Prisons dated 15/3/12 (copy attached) as follows;
“The normal expectation is that staff will be able to leave the Establishment by their staff end time. Exceptionally, where this does not occur, staff should be credited for the additional time.
If a pattern emerges where staff are frequently finishing late, action should be taken locally to remedy the situation. Management should liaise with the POA branch committee to ensure mutually satisfactory arrangements are made.”
The POA’s advice is that: If you are instructed to remain in the Establishment past your finishing time and you are happy to do so make sure you are credited with the additional time.
If you are not happy to stay late you should tell the manager issuing the instruction that you do not wish to stay late but if instructed to do so you will under duress and providing that you are credited with the additional time.
If you have a particular reason for not wishing to stay late e.g. child care, appointments, care for a relative, you should tell your line manager at the earliest opportunity so that they can ensure you have authority to leave work at the end of your shift. If you are instructed to remain past your normal shift finishing time by a manager you should explain why you have to leave, if they still insist, advise them you will remain under duress and providing that you are credited with the additional time; furthermore tell them that you will raise a grievance and seek advice from the union.
If Branch Committees are aware that the terms of the 15/3/12 letter are not being honoured they should contact their POA NEC member and raise the matter with management.
8.Smoking ( PSI 9/2007 revised)
We have previously given concise Guidance on this subject in Circular 100/2015 (Guidance attached). That Guidance was based on PSI 9/2007 which was ineffective as it gave no guidance on how long members should wait for smoke to clear before opening doors and entering cells. HMPPS have not objected to the time periods set out in that Guidance so it is reasonable to conclude that they are in agreement with the time periods contained. All members should familiarise themselves with the Guidance and follow it.
9.Covering Non-Profiled Work
The POA has always maintained that staff and profiles must match to ensure prisons remain safe, secure and decent. HMPPS has consistently refused to accept that the current 20% non-effective allowance is not fit for purpose and puts additional pressures on daily resources and endangers the H&S of staff and prisoners alike. In addition to this HMPPS refuse to profile work such as escorts (other than Main shifts), bed watches, constant watches and other duties despite having the data to project the number of staff required to perform these tasks. HMPPS continue to rely on the goodwill of staff and volunteers to cover this work. Volunteering for this additional work, paid or unpaid, results in staff working excessive long hours which in turn puts their H&S at risk and that of their colleagues. The NEC ask all local committees to engage with local management to ensure non-profiled work is profiled and staffed appropriately. If local management refuse an SFC from PSO 8525 should be registered setting the work and staffing requirements.
The POA has always maintained that staff and profiles must match to ensure prisons remain safe, secure and decent. HMPPS has consistently refused to accept that the current 20% non-effective allowance is not fit for purpose and puts additional pressures on daily resources and endangers the H&S of staff and prisoners alike. All OSG’s and Band 2’s are eligible to work additional hours and receive overtime pay or time off in Lieu if they wish. All too often Governors refuse to profile all the work required of this grade and put in place the 20% non-effectives to cover training, annual leave and sick absences, despite having the data to project the number of staff required to perform these tasks. HMPPS continue to rely on the goodwill of staff and volunteers to cover this work with additional hours. Volunteering for this additional work paid or unpaid results in staff working excessive long hours which in turn puts their H&S at risk and that of their colleagues. The NEC ask all local committees to engage with local management to ensure non-profiled work is profiled and staffed appropriately and that OSG and Band 2 shift patterns have at least 20% non-effectives built into the shift pasterns. Local committees should also consistently agenda recruitment on their monthly meetings with the SMT if staffing groups are not at their TSF (target staffing figure). If local management refuse, an SFC from PSO 8525 should be registered setting the work and staffing requirements.