270: And finally a look forward to what’s happening in employment news for November 2020

The Ministry of Justice has launched a consultation on whether to increase the judicial mandatory retirement age from the age of 70, and if so, whether to increase it to either 72 or 75. This would affect judges (including Tribunal judges), magistrates and coroners. The consultation suggests that since individuals tend to live and work for longer, a higher retirement age may now be justifiable and proportionate to ensure there are sufficient judicial office holders to meet requirements. Views are also being sought on related matters, including whether judges’ and magistrates’ appointments could be extended beyond mandatory retirement age if it is in the public interest or business need. The current mandatory retirement age of 70 dates from 1993 and can only be changed through primary legislation. Responses to the consultation must be submitted by 16 October 2020 and further information can be found in the Judicial Mandatory Retirement Age Consultation paper.

The latest Employment Tribunals National User Group meetings have highlighted the adverse effects of the pandemic on the Tribunal service, including a backlog of over 40,000 claims and loss of Tribunal space due to social distancing requirements. The current backlog of claims is expected to get worse as the Coronavirus Job Retention Scheme winds down, and given that health and safety, whistleblowing and redundancy claims are likely to increase. Steps taken to mitigate these adverse effects include recruiting new employment judges and lay members, increasing the mandatory retirement age for judges, amending procedural rules to facilitate greater use of remote hearings, and improved technology. The Presidents of the Employment Tribunals have also advised that health and safety detriment, unfair dismissal and whistleblowing claims will be treated as priority claims since they are public interest cases and concern whether it is safe to return to work during the pandemic, although it is unclear how this will work in practice in light of the current backlog.

The Ministry of Justice has launched an independent expert panel to look at whether there is a need to reform the judicial review process. This is in line with a Conservative manifesto commitment to ensure the process is not open to abuse and delay. The panel’s broad remit is to consider whether the right balance is being struck between the rights of citizens to challenge executive decision-making, and the need for effective and efficient government. This will include considering whether the terms of judicial review should be written into law; whether certain executive decisions should be decided by judges; which grounds and remedies should be available in claims brought against the government; and the need for any further reforms to procedures such as timings and appeals. The panel is expected to report on its findings by the end of 2020.

The government has announced proposals to reduce the time it takes for convictions to become spent so that they no longer need to be automatically disclosed on employment checks. Custodial sentences of up to one year will become spent after 12 months if there is no reoffending. Convictions of between one and four years will become spent after four crime-free years. Sentences of over four years will not need to be automatically disclosed to employers if there has been a seven year period of rehabilitation. If an individual re-offends during their rehabilitation period, both the original and subsequent offences will need to be disclosed to potential employers. These changes will not apply to serious sexual, violent or terrorist offences, or to those working in sensitive roles such as teaching or nursing. In July 2020, regulations were introduced to remove the requirement for automatic disclosure and self-disclosure of youth cautions, reprimands and warnings. These regulations will also remove the multiple conviction rule which requires the disclosure of all convictions where a person has more than one conviction, regardless of the nature of their offence or sentence.

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