22 March 2018

Bumping, or transferred redundancy, is where the employer decides to retain the person whose role is redundant by deploying them into another role and dismiss the displaced post holder of the other role. The dismissal of that person is by reason of redundancy.

In Mirab v Mentor Graphics the question for the Employment Tribunal was whether an employer needs to consider bumping irrespective of whether an at risk employee raises it.

The Claimant's role had become redundant. The Claimant challenged the dismissal as unfair. The Employment Tribunal disagreed finding that the Respondent had done enough in terms of looking for alternative roles prior to dismissal. As the Claimant had not raised the issue of bumping it was not for the Respondent to consider.

The Employment Appeal Tribunal upheld the appeal and decided that the Employment Tribunal was wrong. There is no rigid rule of law requiring an employer to consider bumping in redundancy dismissals, but conversely bumping is not something that should only be considered where an employee raises it. The question is always part of the Employment Tribunal’s assessment as to whether or not the dismissal in the particular case is fair or not. The question is whether what the employer did in terms of the procedure fell within the range of reasonable responses. That is a question of fact in each case.

In all cases involving dismissal, employers should consider whether or not there are ways to avoid dismissal. Dismissal should be a last resort. The key question a Tribunal will consider in deciding whether or not the dismissal is fair is whether a fair procedure was carried out in each case. Looking at the entire factual matrix and deciding what is reasonable is essential. That is not always easy given the complexity of the issues and advice should always be sought.

The full judgment can be found here.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.