Bumping is where a potentially redundant employee transfers into another role displacing the incumbent employee. Although the role carried out by the displaced employee continues he or she is dismissed fairly by reason of redundancy.
In Mirab v Mentor Graphics (UK) Ltd the Claimant was made redundant from his role as a Sales Director. He was informed he was being placed at risk of redundancy in February 2016. This was a unique role so he was in a pool of one and was invited to put forward any ideas he might have to avoid the redundancy. During the discussion the Claimant asked whether he would be considered for a less senior Account Manager role but was told there was no guarantee that such an additional position would be approved. This was despite the fact that he had previously indicated he would be unhappy in what he saw as a demoted Account Manager role.
Following three consultation meetings which included consideration of 10 ultimately unsuitable vacancies within the company in the UK and 275 worldwide it was decided that the redundancy was unavoidable and the Claimant was dismissed. The Claimant appealed against his dismissal arguing that he should have been compared with Account Managers in other areas outside the UK. This was rejected by the Company on the basis that they were only required to consider alternative positions in the UK and, in any event, the Claimant had not been an Account Manager.
When the Claimant made his case before the Employment Tribunal it was concluded that the employer had acted sufficiently in looking for alternatives, and it had not been required to consider bumping, as such an obligation only arose if the employee raised it, and the Claimant had given no sign he was wiling to work as an Account Manager.
On appeal the EAT found the Employment Tribunal had been mistaken in its approach to the consideration of alternatives. It had assumed that there was a general rule that the employer was not required to consider subordinate positions unless this was raised by the employee. However, the case law did not support that conclusion. Further the Employment Tribunal's conclusion that the Claimant gave no sign that he would have considered redeployment as an Account Manager was not supported by the facts. On these grounds the EAT allowed the appeal and sent it back to the Tribunal for reconsideration.
This case does not change the law on bumping. The fact that an employee has not specifically raised the possibility of bumping does not mean that an employer need not consider it, but nor is there any absolute requirement for an employer to consider bumping in order for a redundancy dismissal to be fair. Each case will turn on its own facts and whether or not the resulting dismissal is fair will depend on whether the employer's action in not considering bumping falls within the range of reasonable responses.