Some of you may already be familiar with the concept of ‘bumping’. It sounds innocuous enough, yet the strategy is sufficiently ruthless that relatively few employees choose to adopt it.
In simple terms, if ‘Andy’s’ role is threatened with redundancy, he can point to another role within the business performed by ‘Susan’ and argue that he ought to be given Susan’s role. The upshot is that Susan may find that she is ‘bumped’ out of her employment instead of Andy!
It’s fair to say that Andy is unlikely to make himself hugely popular by utilising this tactic. However, the recent case of Mirab v Mentor Graphics (UK) Ltd considered the question of whether an employer is only obliged to consider ‘bumping’ if the employee actively raises it.
Mr Mirab was a sales director within an international business. Despite enjoying a relatively successful career with Mentor Graphics, in the early part of 2016, he was informed that he was being placed at risk of redundancy. In the absence of any vacancies for which he would be suitable, Mr Mirab was dismissed by reason of redundancy. He felt that he had been unfairly targeted and brought a claim of unfair dismissal.
As part of his Employment Tribunal claim, Mr Mirab argued that Mentor Graphics should have considered the prospect of transferring him into a more junior ‘account manager’ role, bumping out one of the existing account managers instead. This was not something that Mr Mirab had raised during the redundancy consultation process itself.
When the case came before the Employment Tribunal, the panel concluded that the employee had been fairly dismissed by reason of redundancy. In particular, the ET ruled that the employer would only have been obliged to consider ‘bumping’ if the employee had raised the issue himself. The employee was still dissatisfied with this decision and appealed to the Employment Appeal Tribunal.
The EAT found in Mr Mirab’s favour, concluding that there is no strict rule about whether the employee needs to raise the prospect of ‘bumping’ for the employer to be obliged to consider it. Instead, the question is whether the company’s decisions fall within the range of reasonable responses open to an employer.
What does this mean?
Admittedly, it will rarely be the case that employers will want to raise the prospect of ‘bumping’ without the employee having raised it first. After all, it tends to increase the complexity of the situation and drag other employees into the mix. By the same token, this case confirms that employers cannot assume that they can simply ignore the issue, just because the employee hasn’t mentioned it. Instead, where circumstances make it reasonable to do so, employers should consider proactively raising the prospect of ‘bumping’ one employee out in order to save another.
If you are planning a redundancy or restructuring process and would like to discuss these issues in more detail, please get in touch.