Summary: In a redundancy situation, must an employee specifically raise ‘bumping’ before an employer needs to consider it?
No, held the Employment Appeal Tribunal (EAT) in Mirab v Mentor Graphics (UK) Ltd, available here.
Background: Bumping occurs when an employee whose role is redundant is redeployed into another role, and the displaced occupier of that (second) role is dismissed instead. Facts: The employee, Dr Mirab, was dismissed by reason of redundancy after the employer, Mentor Graphics (UK) Ltd, determined that his role of Sales Director was no longer needed.
Dr Mirab brought a Tribunal claim for unfair dismissal. The Tribunal dismissed the claim and decided that the employer had done enough in terms of looking for alternatives. In particular it found that the employer had not been required to consider “bumping” any other employee working at a subordinate Account Manager level (there were no other Sales Directors). This is because such an obligation only arose if the employee himself raised it and the employee had given no sign that he would have been willing to work as an Account Manager.
Dr Mirab appealed. The EAT allowed the appeal in part. The EAT held that the Tribunal had erred in its approach to the consideration of alternatives. It had assumed there was a general rule that an employer was not required to consider subordinate positions unless raised by the employee. However, this was not supported by case-law. Equally, there is no rigid rule saying that an employer must always consider bumping in order to dismiss fairly in a redundancy case. The question is always for the Tribunal to determine, on the particular facts of the case, whether what the employer did fell within the range of reasonable responses.
Implications: This is a useful reminder that although there is no general obligation on an employer to consider bumping, in some circumstances it may be unreasonable not to do so. In particular, just because an employee does not raise the issue of bumping, it does not mean that it is reasonable for an employer not to consider it.
In practice, we recommend employers to always consider bumping (however briefly!) as part of the redundancy process and, importantly, to record in writing that you have done so.