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Case law update – bumping and redundancyBack

Bumping in redundancy is where one employee (whose position is redundant) is transferred and effectively “bumps” out another employee, whose position is not redundant, but nevertheless that second employee is dismissed because of the redundancy situation affecting the first employee’s position.

Bumping can potentially be a fair reason for dismissal.  It has always been something of a grey area, especially the extent to which either the employee or employer have to consider bumping as part of a fair redundancy procedure.  In a recent case the Employment Appeal Tribunal (EAT) has held that an employee need not specifically raise bumping in a redundancy consultation process for the employer to have to consider it.

The EAT held that the decision to consider, or not to consider, bumping must be viewed through a “range of reasonable responses” test – see below.  In this case Mirab v Mentor Graphics (UK) Limited the Claimant’s role had been made redundant and the Employment Tribunal held the dismissal was a fair redundancy dismissal.  The Judgment of the Tribunal said that the Respondent company had done enough looking for alternatives and had not been required to consider “bumping” because the employee Claimant had not raised the possibility.

The EAT held the decision was an error by the Tribunal.  There is no rigid rule saying that an employer must always consider bumping in order to fairly dismiss in a redundancy case, but equally there was no rule that says an employer does not need to consider bumping unless the employee raises it.  The question for the Tribunal is always, on the particular facts of the case, whether what the employer did fell within the “range of reasonable responses”.  This means that, essentially, another employer could have come to the same decision on bumping, even if some employers may have taken a different view.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.

Posted by Sue Robinson on 01/06/2018