The Employment Appeal Tribunal in a case called Mirab v Mentor Graphics (UK) Limited held that an employee does not specifically have to raise “bumping” before an employer needs to consider it. The decision not to consider “bumping” must be viewed through the “range of reasonable responses” test.
What is bumping?
Bumping is the process of moving a potentially redundant employee (A) into another role, and dismissing the employee currently performing that role (B). This is still a redundancy dismissal, even if there is no actual or anticipated diminution in the requirements for employees to do B’s work
What is the case about?
In this case, the claimant’s role had been made redundant and the Employment Tribunal held that the dismissal was a fair dismissal on grounds of redundancy. The Tribunal found that the respondent had done enough to look for suitable alternative positions and had not been required to consider bumping any other employees as the claimant had not raised the possibility. However, the Employment Appeal Tribunal held, that was an error. There is no set rule stating that an employer must always consider bumping to dismiss an employee fairly in a redundancy matter and there is no rule that states that an employer does not need to consider bumping unless the employee raises it. The Tribunal must always determine, on the particular facts of the case, whether what the employer did fell within the range of reasonable responses.
What does this mean for employers?
Employers must always follow a fair procedure when making redundancies. They should not assume they do not have to consider bumping. However, there is no general obligation on an employer to consider bumping but in some circumstances, it may be unreasonable not to do so.
In the case of Samels v University of Creative Arts, the Court of Appeal stated “it is not compulsory for an employer to consider whether it should bump an employee… if an employer takes the route of bumping another employee, it can be very detrimental to employee relations. It is, in essence, a voluntary procedure.”
If you have any questions on making redundancies, please contact us on 020 7903 6888 or email contact@davenportsolicitors.com.
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