Employers should consider “bumping” in redundancy cases

An important Employment Appeal Tribunal judgment has made clear that employers making redundancies should consider “bumping”, regardless of whether the staff at risk of being made redundant specifically make clear their interest in taking alternative, sometimes more junior roles.

In Mirab v Mentor Graphics (UK) Ltd [2018] UKEAT 0172_17_0401 (4 January 2018) the employment tribunal ruled that employers were under no obligation to consider bumping unless the possibility had been raised by the employees at risk of losing their jobs.

On the facts of the case the EAT found that the tribunal at first instance was wrong because its judgment included a reference to Dr Mirab expressing interest in a more junior role. But it went further, and said that regardless of whether Dr Mirab had made his interest clear, the employer was under a duty to consider making a more junior employee redundant and slotting Dr Mirab into his or her job. It is important to note that the EAT did not rule that employers in this position had to bump more junior staff; it simply said that a reasonable employer will normally consider bumping.

The EAT also held that the ET was wrong to conclude that internal appeals against dismissal were only relevant if the original procedure had been unfair. In Mirab’s case the ET had decided that his internal appeal had been superficial, but that that was irrelevant because it had decided the original decision to dismiss him because of redundancy was fair.

This is a salutary warning to employers to consider bumping, and to ensure that internal appeals are genuinely independent and thorough.