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“Bumping” in a redundancy situation

30 May, 2018

The issue of ‘bumping’ has raised its head again recently in the case of Mirab v Mentor Graphics.

In this case, the claimant employee was employed as the company’s only sales director.

He argued that his redundancy was unfair because, among other things, his employer had failed to consider bumping (and making redundant) any of its account managers and allowing the director to “step down” to the level below.

The employment tribunal was satisfied that the claimant’s role as sales director was genuinely redundant and that the employer had acted reasonably in its consideration of whether any alternative vacancies were available.

More specifically, the ET considered that the employer had not been required to consider bumping on the basis that the obligation to do so only arose if the employee had raised it.

Mirab had not indicated that he would have moved into a more junior account manager role.

Mirab appealed to the EAT who upheld his appeal against the ET’s decision for several reasons, including the fact that the ET had adopted the wrong approach to the consideration of the issue of bumping.

The ET had assumed there was a general rule that an employer is not required to consider bumping unless the employee whose position was redundant has specifically raised this as a possibility.

The EAT made it clear that, in a redundancy situation, the employer must consider whether there are any alternatives to redundancy.

There may be cases when this means looking at whether bumping another employee is an option.

Practically, “a starting off point” is to determine the consultation process whether the more senior employee would be prepared to consider the more junior role at the reduced salary.

It will always depend on the individual circumstances of each situation, including how different the two jobs are, the difference in pay between the jobs, the two employees’ relative length of service and the skills and qualifications of the employee in danger of redundancy.

Employers planning redundancy exercises, therefore, need to ensure they do not ignore the possibility of bumping as part of the redundancy process, and where applicable, build this into the consultation process.

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