A recent EAT redundancy decision has revisited the question of whether an employer has to consciously consider bumping other employees, or whether it is something which the employee who is a risk of redundancy needs to raise. 
The notion of “bumping” often occurs when there is a possibility of a senior employee accepting a more junior role thereby replacing (and “bumping”) the more junior colleague. Employers tend not to think about bumping for the simple (and understandable) reason that a potentially redundant employee is unlikely to want to take a demotion, together with the commensurate pay cut and loss of status that generally goes with it.

Mirab v Mentor Graphics (UK) Ltd [EAT 0172/17] is relatively straightforward on its facts. An employee was selected for redundancy but the employer didn’t consider whether other employees could be potentially “bumped” out of their roles in favour of the employee who was at risk. In this case it concerned a sales director who had a number of account manager subordinate reports.

The employer had been mindful that some time before (and for reasons unconnected with the redundancy) the employee had been dismissive about the possibility of a demotion. 

Notwithstanding the above, it was also relevant (at least as far as the EAT was concerned) that during the consultation process the employee had made some vague references about taking a more junior role.
The Employment Tribunal
The Tribunal felt that the employer had followed a fair process, and that it hadn’t been required to consider “bumping” because the employee hadn’t raised it.

The Tribunal also referred to Barratt Construction Ltd v. Dalrymple [1984 IRLR] suggesting this case had laid down a general rule that it is the employee who must always raise the question of bumping before it becomes relevant. 
The Employment Appeal Tribunal (“EAT”)
The EAT disagreed with the Tribunal regarding the Barrett case. Instead, it was a question of fact in each case whether an employer needed to address bumping. In essence the EAT was saying that there was no hard and fast rule.
Given the question regarding the “fairness” of whether or not the employer needs to consider bumping in certain redundancy situations is left for to Tribunals to decide, it means that employers who don’t address the issue as part of a consultation process are perhaps leaving themselves to chance. If that is right case then why take a risk by not raising it?

Further, in Fulcrum v. Pharma (Europe) Ltd v. Bonassera [EAT 0198/10] it was suggested …. "A starting point may be to determine within the consultation process whether the more senior employee would be prepared to consider the more junior role at the reduced salary.”  

The obvious downside of raising bumping is that the employee at risk may say “yes” and this then triggers the need to start redundancy selection exercises which can be unsettling for a section of the workforce who otherwise would have been unaffected.

At the very least if there is a possible bumping situation (and the employer doesn't want to raise it) then it is a good idea that somebody in the organisation has consciously thought about bumping and documented all the factors as to why it is not appropriate. This may help to persuade a Tribunal if the redundancy is later litigated. See
CONTACT: Christopher Filor
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