Things that go bump for an employer
Ian Machray explores a recent case which provides useful guidance on “bumping” in a redundancy situation.
“Bumping” is where an employee whose role is redundant is redeployed into another employee’s role which is not redundant and that employee is dismissed. It is most typically used in a situation where a more junior employee is dismissed to make way for a more senior employee whose post has become redundant.
In a recent case the Employment Appeal Tribunal (EAT) considered the extent to which employers must consider bumping before dismissing an employee by reason of redundancy.
The case concerned Dr Mirab, a Sales Director at Mentor Graphics. Dr Mirab was successful in his work however sales in his division were lower than forecast and growth objectives were not being met. On 3 February 2016, Dr Mirab was informed that his position was unlikely to be a continuing requirement and he was therefore at risk of redundancy. On 29 February 2016, the employer concluded that Dr Mirab would be made redundant and given notice of termination.
Dr Mirab claimed unfair dismissal. The Employment Tribunal dismissed the claim and held that the employer was not required to consider bumping in order for the process to be fair because such an obligation only arose if the employee himself raised it and Dr Mirab had given no indication that he would have been willing to work at a subordinate level. Dr Mirab appealed to the EAT.
The EAT held that it is not the case that an employer only needs to consider bumping if it is raised by the employee. That said, the EAT also confirmed that just because an employer had not considered bumping does not automatically mean the dismissal was unfair. The overriding consideration is whether the decision to dismiss by reason of redundancy falls within the reasonable band of responses.
Employers should be aware that this decision reinforces the fact that when considering alternatives to redundancy they should at least consider whether bumping could be a practical option to explore and employers would be well-advised to record in writing that they have done so.