Do employers need to consider bumping in redundancy consultations?

The Employment Appeal Tribunal has confirmed that there is no general rule that an employer is only required to consider bumping if it is raised by the employee. Whether or not bumping should be considered during redundancy consultations will depend on the particular facts of each case, in the context of the employment tribunal’s assessment of whether the employer’s decision to dismiss was reasonable – and hence fair.

Bumping refers to the process of transferring an employee whose role is at risk of redundancy into the role of another employee, who is then made redundant instead. The other employee is said to have been “bumped” out of their former position.

In this case, the claimant was engaged as a sales director and managed a team of account managers. Over time, it became clear that the division in which the claimant was employed was failing to grow as expected. The claimant’s role was unique in that he was the only sales director employed in the division, and as such he was informed that he was at risk of redundancy. During the consultation period, the employer relied on an email sent by the claimant during an earlier restructuring of the division which had stated that he did not wish to be made an account manager. It therefore did not consider transferring the claimant into a subordinate role as an alternative to redundancy.

The employment tribunal had concluded that, following earlier case law, the onus was on the claimant to suggest that he would consider taking an a more junior role to avoid redundancy. In absence of this, the ET ruled that the employer had not acted unreasonably in failing to consider bumping as part of the consultation process.

The EAT has now ruled that the ET was wrong to interpret the previous case law in this way. It did not set out a rigid rule in this respect. In addition, the ET had failed to recognise that the claimant had indeed raised the possibility of bumping. The EAT therefore remitted the case to the ET to reconsider its decision that the dismissal had been fair.

This latest EAT decision confirms that there is no firm rule on whether it is reasonable to consider bumping as part of a redundancy consultation process. Whether employers should consider bumping will depend on the individual circumstances of the redundancy. It may be more appropriate to consider this possibility where there is a single or small group of employees at risk of redundancy who have valuable transferable skills. It will be less likely to be appropriate to consider bumping where there are collective redundancies taking place, or where the employee at risk has a highly specialised role. In any case, employers must be aware that if an employee raises any possibility of bumping during a redundancy consultation process, then the employer should always take steps to consider whether this is a viable option.

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