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Judicial review shouldn't be used as misconduct hearing 're-run'

WMP sought a judicial review of the decision to not dismiss an officer who had been found guilty of gross misconduct, instead issuing a final written warning as a sanction.

An officer who was given a final written warning after being found guilty of gross misconduct can continue in post, after an application by her force to judicially review the decision was rejected.

West Midlands Police (WMP) applied to the High Court after a misconduct panel decided not to dismiss PS Sarah Srivastava following a hearing held on October 5 and 6, 2020, during which gross misconduct was found to be proven.

The application failed, a decision which the officer's Federation rep hopes will be "considered before forces seek application for judicial review in the future".

WMP Federation discipline lead, Dave Hadley, said: "Judicial review is not and should not be considered a re-run of the original hearing, following an unhoped-for outcome; it is a review of the decision-making process itself.

"It is incredibly pleasing that after a stressful two years, the officer is now able to put this whole episode behind them and move on.”

On November 8, 2019, while PS Srivastava had been working in the Force Intelligence Bureau, she attended an internal interview for a supervisory role within a serious organised crime and exploitation (SOCEX) pilot hub.

During this interview, she was asked to ‘give an example of how you considered a range of values and needs when making a decision that affects a group of people’.

In response, PS Srivastava referenced an occasion in which members of her team had made discriminatory comments to a transgender officer which she had challenged.

When questioned about this incident, specifically why it hadn't been escalated, she admitted that it hadn't occurred and that the account provided at interview was untrue.

PS Srivastava was charged with breaching four Standards of Professional Behaviour, all of which she admitted in her Regulation 22 Notice response.

However, the misconduct panel found that only the standards regarding Honesty and Integrity and Discreditable Conduct were clearly breached. 

Chair Mr Callum Cowx said the standard regarding Equality and Diversity was not breached, and that Authority, Respect and Courtesy was 'only just'. 

This was one of three grounds for judicial review argued by WMP, which also alleged that the panel erred in law and/or acted irrationally in its assessment of PS Srivastava's misconduct, and in its decision to give her a final written warning.

It agreed that her misconduct was serious enough to warrant dismissal, but concluded that 'as an example of gross misconduct it fell some way short of the worst cases' seen in such hearings. 

A key consideration was whether PS Srivastava's 'lying in an internal job interview indicated a genuine risk to the public', with the panel concluding that this didn't demonstrate a tendency to act dishonestly in an operational capacity.

Mrs Justice Ellenbogen found no merit in any of the three grounds advanced, concluding that WMP's criticisms of how the panel assessed PS Srivastava's misconduct 'constitute no more than a disagreement' with its interpretation. 

The decision on sanction was also found to be legally sound, with the judge reiterating the panel's conclusion that a finding of gross misconduct doesn't compel dismissal. 

Mr Hadley believes the decision emphasises the importance of Legally Qualified Chairs, whose continued role as the arbiter of officer dismissal is being challenged by a number of chief constables.

He continued: "The previous Chief Constable is on the record as saying he had officers working for him that a supermarket would have sacked, he was of the opinion that chiefs should be in full control of all disciplinary outcomes in their Force and sadly that is a view which is shared by many other chiefs.”

Mr Hadley stressed that police officers, as independent officers of the Crown, are part of a group "not afforded many of the protections of employment legislation".

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