General Secretary

February 2018

THE RISKS OF DOING YOUR JOB

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STEVE GILLAN, POA GENERAL SECRETARY, REPORTS THAT ALL TOO OFTEN AT POA HQ, WE RECEIVE CONTACT FROM A LOCAL BRANCH OFFICIAL INDICATING THAT A MEMBER I S REQUIRED TO ATTEND AT A P O L I C E STATION TO B E INTERVIEWED BY THE POLICE UNDER CAUTION, FOLLOWING AN INCIDENT AT WORK.

We arrange for the member to be legally represented but unfortunately, this is often only the beginning of a long and arduous process. No one can truly appreciate how the member and their families feel at this point, and the stress only intensifies as the process unravels. Remember, POA members only go to work to do their job, I doubt very much that they or their family thought they would be involved in a criminal investigation as a suspect.

POA members manage and supervise the most difficult and vulnerable people in our society and are required to deal with extreme levels of violence that often results in the use control and restraint techniques to manage difficult and life-threatening situations. If a complaint arises following the use of C&R, members may face an external police investigation and internal disciplinary proceedings. This is an extremely stressful situation for members but with the support of Thompsons and the Union, the vast majority of criminal investigations result in no criminal charges. However, this is not the end of the matter.

Investigations

The employer relies upon a much lower threshold than the police for determining whether an investigation should proceed. Following the conclusion of the police investigation an employer will conduct their own internal investigation. Many of our members are suspended and this puts more pressure on them and their family. It also puts more strain on their work colleagues who have to cover while they are off work.

Frequently, members are dismissed because a manager relies upon their own interpretation of the facts, which can be a wholly flawed, subjective view. Insufficient weight is applied to the findings of the criminal investigation and the fact that professionally trained police officers have fully investigated the incident, considered all the evidence, including CCTV and contemporaneous witness accounts and determined, with the endorsement of an independent prosecuting authority (the Crown Prosecution Service), that there is no criminal case to answer.

Nonetheless, the employer continues with the investigation, often seeking disclosure of the statements and evidence gathered by the police, in the belief that this material will help them reach what would appear to be a predetermined view, and in the absence of any further evidence to change the complexion of the case, determine that the matter should proceed to a disciplinary hearing.

Balance of probabilities

The current law allows the manager to reach a different conclusion to the police applying the balance of probabilities test. This different threshold test allows the manager to find the member guilty of using excessive or unnecessary use of force, despite the earlier findings of the criminal investigation. This can result in the loss of employment.

The Union continues to support members during this process and provides legal advice, given the current law, all too often the advice to members is not positive. Employment legislation and the test applied by an Employment Tribunal does not favour the worker in this position. Yes, we do win some cases and the member does receive compensation, but they are not reinstated and do not get their job back. Even when we have won on behalf of the member and received compensation, the employer may appeal using more taxpayers’ money to try and justify their actions again.

Use of force

The POA has issued advice to members on how to deal with the issue of use of force. However, our members are still facing investigations and threats of prosecution.

I am not suggesting that if members do use excessive or unnecessary force or assault an individual there should be no action, but the action must be proportionate. All the facts and evidence should be considered and an informed judgement reached, not predetermined, and based on personality or internal politics as has often been the case.

POA members also have to supervise those who pose a risk to themselves of self-harm or suicide, and this again can lead to criminal and internal investigations, as recently witnessed with our members at HMP Nottingham. (See pages 8 and 9 for further information).

Systems not fit-for-purpose

In my opinion the current systems are not fit-for-purpose. Staff are overworked and stretched to the limit. Corners are cut to save money with individuals on regular observations rather than a constant watch. When a person takes their own life, the death is always investigated by the Prisons and Probation Ombudsman, the police, the employer and coroner. Again, the members just went to work on the day in question.

This is a typical letter we receive from Thompsons in such cases:

We write to confirm that your member was interviewed under caution in relation to allegations of misconduct in public office and gross negligence manslaughter. Your member attended the interview voluntarily and followed the advice given.

Matters have been reported for consideration of prosecution and we will keep you fully informed of developments.

If the case has to be heard in the Crown Court, our members are means tested (and this includes their family’s) income to establish the level of contributions. Currently, the average contributions are £8,000 per member.

The NEC agree to indemnify members if they have a tenable defence and plead not guilty.

Remember, all this and more for just going to work. Not sure this is in the adverts or strategy to recruit and retain staff.

In cases where our members face prosecution there appears to be a real appetite to make sure justice is seen to be done. The employer and/or the CPS often instruct heavyweight, experienced barristers to prosecute the case.

In order to ensure equality of arms, the POA ensures that our members have an equal standard of representation. We are determined to protect our members in any way we can.

Again, I am not saying members should be exempt from the law what I am saying is why is your employer never satisfied with the real legal test the court or that of the experts the police?

I am not aware of any other public worker who is treated by the employer in such a manner.

In closing, remember when you go to work do your job properly, don’t cut corners to make things work because when it goes wrong your employer will come looking for you.

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