In redundancy exercises, employers have a duty to consider suitable alternative employment for any employee at risk of redundancy. This sometimes involves an employer placing an ‘at risk’ employee into a role that is currently occupied and dismissing the displaced employee instead. This process is known as ‘bumping’. In the case of Mirab v Mentor Graphics (UK) Limited, the Employment Appeal Tribunal (EAT) considered whether employers must consider ‘bumping’ an employee in a redundancy situation.
Dr Mirab was employed by Mentor Graphics (UK) Limited in February 2013 as a Sales Director. After a restructuring of the Respondent’s business in 2015, the Claimant had several responsibilities taken from him and the number of employees reporting to him was reduced as a result.
Dr Mirab was informed that he was being placed at risk of redundancy in February 2016 and a consultation process commenced. During the consultation process Dr Mirab was provided with a list of alternative internal positions however, he did not find any of them suitable. Instead, Dr Mirab enquired as to whether a new Account Manager post would be created for him.
The Respondent advised the Claimant that he had previously expressed dissatisfaction at the possibility of becoming an Account Manager and there was no capacity within the organisation to create a new post as all of the Account Manager positions were occupied. Dr Mirab was subsequently dismissed on the grounds of redundancy.
Dr Mirab brought a Tribunal claim for unfair dismissal on the grounds that he believed that the Respondent should have considered bumping him into an existing Account Manager role and making the displaced employee redundant as a result. The Tribunal dismissed the claim and decided that the employer had done enough in terms of looking for alternatives. In particular it held that the obligation to ‘bump’ an employee only arises if the employee himself raises it. Further, the Tribunal highlighted that the Claimant had not raised the possibility of moving into an existing role and had previously expressed disinterest in the Account Manager post. Dr Mirab appealed.
The EAT allowed Dr Mirab’s appeal in part. The EAT held that the Tribunal had erred in its approach to considering alternative positions. The Employment Tribunal’s finding that an employer had no obligation to consider subordinate positions unless it had been raised by the employee was wrong. Instead, it found that the Employment Tribunal should have considered whether the Respondent’s decision making process fell outside the range of reasonable responses because it had failed to consider ‘bumping’ another employee.
The EAT did however confirm that there is “no rule that an employer must always consider ‘bumping’ another employee in order to dismiss fairly in a redundancy case”. The Court stated that the test in this situation will always be sensitive to the facts of a case and whether the employer’s actions were within a range of reasonable responses.
This decision provides a useful reminder that although there is no general obligation on an employer to consider bumping, in some circumstances it may be unreasonable not to do so. Crucially, the Tribunal will also consider the merits of ‘bumping’ an employee in light of the size, resources and expertise of the employer in question.
Employers should exercise caution when making employees redundant without considering all suitable alternative employment, including the possibility of ‘bumping’ employees and should always seek professional legal advic
Maxine Orr is a Partner specialising in employment law in Worthingtons Solicitors, Belfast. For advice please telephone 028 90434015 or email firstname.lastname@example.org.