The Appeal Tribunal has issued a ruling which looks the extent to which a dismissal for redundancy will be unfair where the employer fails to consider “Bumping”.

Bumping in a redundancy situation is the practice of redeploying a redundant employee to a role occupied by a second person, and making that second person redundant instead.  The requirement to consider bumping has long been the subject of contradictory rulings in Tribunals sometimes rendering dismissal unfair, and sometimes finding that there was no requirement to consider the practice.

In this particular case, an employee claimed unfair dismissal after the employer made him redundant without considering bumping another member of staff. The original tribunal held that the employer was not required to consider bumping if the employee did not raise it during consultation. However, the Appeal Tribunal had a slightly different view.

The Appeal Tribunal ruled that there was no rigid rule that an employer should, or should not consider bumping. Whatever the employer does in this situation is the subject of the “band of reasonable responses” test. That means the question is whether, in these particular circumstances, the decision not to consider bumping was reasonable.

Practical guidance

Any employer faced with making staff redundant should consult fully. The question of whether to consider bumping or not seems to us to be easy to answer. In our experience, employers that do consider bumping normally conclude that it is neither fair, nor good business practice to bump redundant employees, because it takes a settled and presumably productive employee who is experienced in their role and removes them in favour of someone who, by definition, is not experienced in that role.

Therefore, always consider bumping.  The decision to consider it, is not a decision to actually do it. Who knows, an employer might, on consideration, find it’s a good idea for the business. If, as is more likely, it is decided not to bump, then it has been considered and the employer will not have to face difficult questions as to whether or not they should have done so.

The full judgment can be read at the following link: https://assets.publishing.service.gov.uk/media/5aa15c5d40f0b60ba803ab22/Dr_H_Mirab_v_Mentor_Graphics__UK__Ltd_UKEAT_0172_17_DA.pdf

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