The Association’s Command Resilience Group has prepared the below answers to frequently asked questions about Superintending ranks working hours.
The Police Regulations 2003 (the “Regulations”) do not make any specific provision for the required weekly working hours for a Superintendent. This is different from Constables and Sergeants of Federated ranks who are required to work an average of 40 hours per week. There is no specified minimum number of hours that have to be worked. However, the maximum that can be worked is restricted by the Working Time Regulations 1998 ( the “WTR”) to no more than an average of 48 hours per week measured over a seventeen week period. (Regulation 4 WTR)
The work of a Superintendent is not generally defined by the number of hours worked, but whether they have fulfilled their duties. There are exceptions to this, such as when carrying out a specific command function. Whilst a Constable could be disciplined for retiring early from duty not having completed their required working hours; for a Superintendent, going home before completing eight hours work would not, perse, be a disciplinary offence. It would be a question of whether or not they had fulfilled their role and attended to their duties.
It is clear that the role, coupled with the expectation and policies of Forces, would require that a Superintendent works at least the equivalent of an average 40hr week like members of Federated ranks. Those forces with duty management systems typically roster their Superintendents for eight hour tours of duty; but it is usually accepted that they will work those hours and tours of duty that are required in order to carry out the duties and responsibilities expected of them. The experience of members is that their average working week is significantly longer than 40 hours, with many members routinely breaching the limit of an average of 48 hours per week measured over a seventeen week period as set by the WTR 4(3). You should therefore ensure that you record the hours that you work and, if you are regularly breaching WTR, bring this to the attention of your line manager.
The Regulations state that a Superintendent should have eight weekly leave days in 28 days. It follows, therefore, that there is an expectation they should be working, in whatever capacity, on those other twenty days. Regulation 22 Annex E paragraph 4(c))
It is standard practice to allow for annual leave to be taken in blocks of four hours. Although not specifically covered in Regulations, we believe, on this basis, a working day should, in ordinary circumstances, be for a period in excess of four hours; otherwise half a day’s annual leave should be taken.
A Bank Holiday should be treated as a weekly leave day and, if worked, re-rostered on this basis. (Regulation 26 Annex H paragraph 1 (h))
In exceptional circumstances, Superintendents may be required to work so many hours of continuous duty in a 24 hour period that a return to duty the next day would not be feasible within Regulations and 18(2) WTR. Locally agreed arrangements should apply in such situations and it is recommended that, under such circumstances, an officer should be regarded as being ‘at work’, but allowed to spend it resting
The Regulations make no provision for refreshment breaks for Superintendents. The WTR should be referred to which specify a normal break time of twenty minutes. (Regulation 12(3) WTR)
Police Regulations do not enable such arrangements as Superintendents do not have fixed hours. The development of such a scheme would create a debt from the organisation to the Superintendent which it does not owe.
Some forces have considered developing schemes of this nature in order to demonstrate that they are managing effectively the working hours of Superintendents. However, whilst the Association welcomes any positive moves by Chief Constables to mitigate the culture of excessive working hours, it is of the view that such schemes sit outside Regulations and are therefore not enforceable.
There is no provision within current Police Regulations that can compel a Superintendent to perform ‘on call’ duties. However, working in an environment where ‘on call’ is routinely performed is very much the norm for many members.
The Association believes that many ‘on call’ arrangements could be dispensed with through proper planning. Forces should be able to put in place arrangements whereby incidents can be dealt with and legal responsibilities discharged by those staff physically ‘on duty’.
It should be remembered that Superintendents are entitled to 31 days annual leave per year and eight weekly leave days in every 28. Members should not be ‘on call’ on any of these days.
There may be circumstances where a member, for whatever reason is unable to re-roster a weekly leave day but still performs ‘on call’ duty. If this is systemic, then the local Branch Executive should be informed and this brought to the attention of Chief Officers.
Being ‘on call’ is not classified as working time, unless you are actually called on to perform substantive work as a result. The mere recall to work by granting of an Authority or taking some information phone calls, for example, would be unlikely to justify claiming a day. Some guidance can be found in paras. 11-13 of HO Circular 21/2002 Annex IV
A distinction needs to be drawn be between a normal working day and a day when a Superintendent is specifically required to be ‘on call’.
It is acknowledged that Superintendents participate in ‘on call’ rotas which required them to be immediately contactable and capable of reacting. There is no guidance on how often this should be the case, but clearly it should not be every working day and more than two occasions per week could be considered excessive. ‘On call’ duties should only ever be performed on working days. Should ‘on call’ be required to be performed on either a weekly leave or annual leave day, the day should be re-rostered, or annual leave cancelled and become a normal working day whereby a day is actually worked.
There is nothing in Regulations that cover a Superintendent’s fitness to work or availability to be contacted once a normal working day has been completed . However, Superintendents should behave reasonably in this regard and not alter their ‘off duty’ behaviour to make themselves any more or less contactable than they would otherwise have been or be available for recall to duty
Yes. The only circumstances under which Superintendents can refuse to be recalled to duty are if they consider themselves to be not fit to work. When forming such a view, members may wish to consider their own fitness to work against any alternative options the Force may have to deal with the occurrence that has prompted the re-call to duty request. If an officer decides to work whilst not fit, this should be declared immediately and a replacement sought as soon as possible
Yes they do. It is often suggested that Superintendents, as managers, are exempt from the Working Time Regulations. This is incorrect see Regulation 41 of the WTR. It is at ACC rank and above that the Health and Safety Executive has advised that Assistant Chief Constables are classed as what is known as “semi-autonomous workers”. (as per Home Office Circular 21/2002 paragraph 22).
Any activity undertaken in connection with our occupation is counted as ‘working time’ (please see para. 11-13 HOC 21/2002). The employer is obliged to ensure that they have systems in place to record and monitor this. Being ‘on call’ does not, as such, count as ‘working time’ unless a recall to duty takes place. A recall to duty is when an officer is asked to undertake a function, such the granting of an authority, the taking control of an incident or making ‘Command’ decisions and should be recorded as such. The passing of a message or routine information does not count as being recalled to duty.
The employer is obliged to have systems in place to ensure the accurate recording of working hours. This is not just what someone is required to work, but the hours actually worked by them. The employee is required to utilise the systems put in place by the employer and record the hours worked by them. It is not specified what system should be used, and in theory an individual spread sheet could be used. However, this would not enable the employer to comply with the legal requirements of the Working Time Regulations as such a system would not highlight breaches to the employer and enable them to take action. Most forces therefore have a duties management system and it is usually the norm for Superintendents to be required to use that system.
It is possible to opt out of the provision of not exceeding an average of a 48 hour week under the WTR. In order to implement this opt out, the employer must have first obtained the worker’s agreement in writing. Other provisions of the WTR, such as taking a minimum of two rest days every fourteen days, and being given an eleven hour rest period between shifts are mandatory and cannot be opted out from. (WTR Part 3)The Association’s advice on the matter is that there is no benefit to any of our members to opt out of the 48 hour average working week. It is to be noted that there remains the obligation to record hours irrespective of the opt-out.
The Regulations allow for weekly leave days to be taken at another time, as long as they are taken within a year of the original day being worked. After the year has elapsed, there is no entitlement for that day to be taken and it is lost. Weekly leave days cannot be re-rostered into a following year. (Regulation 26 Annex H paragraph 1 (h))
Employment law would indicate a Supt would be entitled to be paid for accumulated days which the organisation has not allowed the individual to take. However this is based upon a continued request to take leave followed by a refusal. This is, however, rarely the model of practice.
The reality is of Superintendents accumulating days but not formally asking for them to be taken.Some forces have allowed, or required, members to work their weekly leave days and then retain them for a period beyond the twelve month limit. In some cases these have been retained for many years and have only been taken when a member retires. Forces are now beginning to tighten up on such practices. Where this is the case, it would be reasonable for Forces that have allowed such practices to grant members sufficient time to reduce the level of weekly leave days owed to achieve compliance with the Regulations.
If a Force is reliant upon on Superintendents routinely working weekly leave days and being unable to re-roster them as a way of carrying out normal business, then this should be brought to the attention of Chief Officers by the local Branch Executive. Such a course of action should prompt a review of working practices, ‘on call’ arrangements and Superintendent numbers as necessary.
If Members find that that they are unable to fulfil the requirements of their role without routinely accruing weekly leave days that cannot be taken, then this should be brought to the attention of their Branch Executive. Similarly, if Members are becoming fatigued due to not complying with either Regulations or Working Time Regulations, e.g. not taking two weekly leave days within a fourteen day period, then this should also be raised with the Branch Executive. (Regulations 11(1) & 11(2) of the WTR )
There should be no need for local agreements and the general rule is that they should be eschewed. However, it is recognised that local branches may be in a position where they are asked to enter in such agreements in respect of accumulated rest days or time off in lieu. It is to be emphasised that the nationally agreed regulatory framework cannot be negotiated away at a local level. Therefore such agreements cannot ultimately be enforced and are an expression of “goodwill” on behalf of both sides.
Branches should consult with the National Secretary if asked to enter into such an agreement.
Issues related to flexible working are subject to complex employment law and specialist advice should be sought in any given situation. The following can only be a general view:
Yes. However, this should only ever be done in a role which is suitable for part-time working. In other words, should it be necessary for a Superintendent to work reduced hours to help with caring responsibilities, for example, it would be inappropriate for that officer to be retained in a role that the Force has expectations will be performed on a full-time basis.
The case law on this matter (Clark v Met Police) indicates a Supt may be entitled to be paid for additional hours worked above those set down in their part–time agreement. Thus advice should be sought from national office if a Supt is regularly working beyond the allotted part time hours
This is more problematic as Superintendents do not have defined hours and thus do not have a regulatory right to work condensed hours. However, many forces have introduced flexible working policies that do not exclude Superintendents. This is in keeping with recent equality legislation which supersedes the Regulations. However, the free day is not a rest day and the requirement to work on this day would not generate a further rest day. Thus such arrangements should only be made if there is minimal expectation that officers could be re-called to work on a free day.
Command Resilience Business Area, PSAEW, September 2013.