In a redundancy case, must an employee specifically raise 'bumping' before an employer needs to consider it?
What is bumping?
Employees at risk of redundancy can be given the opportunity to ‘bump’ another employee out of their position, so it’s the second employee that actually gets made redundant.
This often happens when employers don’t want to lose a senior valued staff member. In that situation, the senior employee may agree to move to a more junior position in order to stay at the company. In that circumstance, it would be the junior member of staff that will be put at risk of redundancy.
Paul Burton, Head of Frettens' Employment Team, says “Bumping is not appropriate in all cases and employers should take a look at all possibilities to see if there’s scope to keep both employees in the job. Bumping can be emotionally taxing on all parties involved and there is a risk to the company of legal action should the second employee claim unfair dismissal."
In a redundancy process, who must raise bumping?
Can, or should, the at risk employee raise bumping during the redundancy selection process? Does an employer need to consider it before an employee requests this as a consideration?
A recent case at the Employment Appeal Tribunal touched on this. In Mirab v Mentor Graphics (UK) Ltd, the tribunal held that the decision not to consider 'bumping' must be viewed through the 'range of reasonable responses' test.
Fair redundancy dismissal
In this case, the Claimant's role had been made redundant and the tribunal held that the dismissal was a fair redundancy dismissal.
The tribunal found that the Respondent had done enough in terms of looking for alternatives, and had not been required to consider 'bumping' any other employees because the Claimant had not raised the possibility.
However, the Employment Appeal Tribunal held that that was an error.
Paul explains "There is no rigid rule saying that an employer must always consider bumping in order to dismiss fairly in a redundancy case. Equally, there is no rule that says an employer does not need to consider bumping unless the employee raises 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."
Requirements for a fair redundancy
It is predicted that many companies will have to consider job losses over the next year, so employers need to keep on top of the requirements for a fair redundancy.
In any redundancy, the focus should always be on the question of reasonableness and fairness. Failing to demonstrate either may result in a finding of unfair dismissal or other related claims, such as discrimination. This would mean that significant compensation would be payable to the employees in question and increasing costs to employers.
Paul concludes "Sensibly, employers are less likely to face challenges on procedural grounds following the exclusion of redundancy from the Acas code, but we have seen a significant increase in employers being challenged on their choice of selection pools."
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Paul or Kate will be happy to discuss it with you.