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To bump or not to bump - that is the question
Mirab v Mentor Graphics (UK) Ltd
An employer’s failure, in a redundancy situation, to consider the ‘bumping’ dismissal of a more junior employee to make way for a more senior employee may, or may not, make the dismissal of the senior employee unfair, depending upon the circumstances.
‘Bumping’ occurs when an employee whose role is at risk of redundancy is moved into an alternative role - and the individual in that alternative role is dismissed as redundant instead. This case looks at how bumping works in practice - and when an employer needs to take it into account.
Dr Mirab was dismissed after his employer determined that his role of Sales Director was no longer needed. In determining whether the dismissal had been fair, the tribunal had concluded the employer had done enough in terms of looking for alternatives, specifically it had not been required to consider ‘bumping’ any other employee working at a subordinate Account Manager level (there were no other sales directors) because such an obligation only arose if the employee himself raised it and Dr Mirab had given no sign that he would have been willing to work as an Account Manager. Dr Mirab appealed.
Allowing Dr Mirab’s appeal as it related to this aspect of the tribunal’s decision, the EAT said the tribunal had got it wrong. There is no specific rule saying an employer must always consider bumping in order to fairly dismiss on the grounds of redundancy. Similarly, however, there is no requirement for the employee himself to ask for bumping before the employer is placed under an obligation to consider it. 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.
Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0172_17_0401.html
You’re not legally obliged to consider ‘bumping’ but case law has established failing to consider it may, in certain circumstances, make a dismissal unfair. ‘Bumping’ is often overlooked in redundancy situations. This case highlights that you should consider the possibility of redeploying a redundant employee into another employee’s role as part of your general consideration of the alternatives to redundancy that might be available. Don’t simply discount the prospect of bumping until the employee suggests it as a way to avoid their dismissal.