To bump or not to bump?
Considering it is not particularly common to see it in practice, bumping is something that clients ask us about surprisingly often. It is a term that many employers and HR practitioners have heard of, and know they need to be wary about, but they tend to be unsure about what exactly they need to do. Fortunately, Mr Bump is here to shed some light on this tricky subject, and bring you up to date on the very latest case law!
What is bumping?
Bumping arises in a redundancy situation and is where one employee is 'bumped' out of the way and made redundant so that another 'at risk' employee can take their place.
For example, employee X's role is at risk of redundancy and employee Y is in a lower level position. Bumping would arise if Y is made redundant so that X can take Y's job. The reason for Y's dismissal would be redundancy, despite the fact that Y's role was not at risk.
As you can imagine, bumping is not particularly popular with people in Y's position, and is highly likely to be challenged, which is one of the reasons why employers are often wary about using it! One of the times when it can sometimes crop up would be if Y has less than two years' service.
The courts have even recognised that bumping can cause damage to employee relations, with the Court of Appeal commenting in 2012 that ""it is not compulsory for an employer to consider whether it should bump an employee... if an employer takes the route of bumping another employee, it can be very detrimental to employee relations. It is in essence a voluntary procedure." (Samels v University of Creative Arts)
Over the years the case law on bumping has developed, and until recently the general position was that employers are required to give consideration to bumping in appropriate situations, but they are not obliged to 'bump'.
What is the very latest case law?
The Employment Appeal Tribunal recently had to rule on bumping in the case of Mirab v Mentor Graphics UK (2018). In the case, the Employment Tribunal had concluded that the employee's dismissal had been fair, and one of the reasons given for that conclusion was that the employer had not been obliged to consider bumping, because the employee had not asked them to.
The Employment Appeal Tribunal overruled the Employment Tribunal on this point, saying that there was no requirement for the employee to raise bumping in order for it to be a consideration. The test is whether the employer's actions in the redundancy process are reasonable in the circumstances. Here, Mr Mirab had indicated during the consultation process that he may be prepared to take the lower position, but this was not explored further. The case was therefore sent back to the Employment Tribunal for them to reconsider this point.
It may be of course that the employer can show that even if they had considered bumping, it would not have been appropriate. However, that will be for the Tribunal to determine.
What does this mean for employers in practice?
What this case means is that employers cannot ignore the issue of bumping and think that it only needs to be considered if an employee asks about it. If you do that, you my end up with an experience nearly as painful as poor Mr Bump!
Bumping does need to be part of the overall assessment an employer makes when they are following a fair redundancy process, so even if you are dealing with what may seem to be a standalone redundancy, it does mean that you need to look at the wider picture across the organisation to think about whether there is any scope for bumping.
This case hasn't changed the fact that bumping isn't compulsory, and I still expect it will be relatively unusual. However, to protect against cases like this one it would be wise for employers to ensure that there is evidence (such as a paper trail) to show that consideration was given to bumping, what the outcome was and why.
We have years of experience of advising on all sorts of redundancy and restructure situations. If you have something you would like to talk through, why not give us a call.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or firstname.lastname@example.org).