In a redundancy case, must an employee specifically raise 'bumping' before an employer needs to consider it?
No, held the EAT in Mirab v Mentor Graphics (UK) Ltd. Rather, the decision not to consider 'bumping' must be viewed through the 'range of reasonable responses' test.
Bumping occurs when an employee whose role is redundant is redeployed into another role, and the displaced occupier of that (second) role is dismissed instead.
In Mirab, the Claimant's role had been made redundant and the tribunal held that the dismissal was a fair redundancy dismissal. The tribunal found that the Respondent had done enough in terms of looking for alternatives, and had not been required to consider 'bumping' any other employees because the Claimant had not raised the possibility.
The EAT held that that was an error. There is no rigid rule saying that an employer must always consider bumping in order to dismiss fairly in a redundancy case. Equally, there is no rule that says an employer does not need to consider bumping unless the employee raises it. The question is always for the tribunal to determine, on the particular facts of the case, whether what the employer did fell within the range of reasonable responses.
Thanks to Ezra Macdonald of Pump Court Chambers for preparing this case summary.