Most of us have fond memories of the local swimming pool save for when the lifeguard blew his whistle every time you decided to 'dive bomb' your friends. Redundancy pools however have different rules - jumping, diving and heavy petting is still frowned upon but 'bumping' is definitely ok. The case of Fulcrum Pharma (Europe) v Bonassera serves as a timely reminder that, when going through a redundancy exercise, you should give proper consideration to whether a more junior employee should be included in the redundancy pool on the basis that their position could be 'bumped' and taken on by the more senior employee. Get it wrong and, well, you will have to read on to find out what happens…
"Bumping" (in the employment context) is where a potentially redundant employee is moved to another role and the employee who is currently carrying out that second role is made redundant, i.e. they are 'bumped'. This will still be a redundancy dismissal even if there is no actual or anticipated reduction in the requirement for employees to do the second role.
This case involved a redundancy within Fulcrum's HR Team, which consisted of an HR Manager, Mrs Bonassera and a more junior HR Executive, Mrs Carter . The HR Manager had previously carried out more of the junior functions of the HR Executive role and vice versa. The position of HR Manager was identified as being at risk of redundancy. Fulcrum proceeded on the basis that Bonassera, as HR Manager, was in a self selecting pool of one - picture a small paddling pool. They did not consider pooling her with Carter and did not ask Bonassera whether she would have considered taking on the HR executive role (and thus bump Carter out). Did this mean that Fulcrum sank or swam?
They sank! The EAT concluded that Bonassera had been unfairly dismissed due to a failure to properly and meaningfully consult with Bonassera on the selection pool and had failed to properly consider the possibility of putting both employees at risk (on the basis that Bonassera could be "bumped" into Carter's role). However, the EAT did say that just because there had been some times when both the senior and junior employees had "covered" the other's role this did not automatically mean that there should be a pool of two.
So when should an employer consider bumping? The EAT said that a starting point may be to determine within the consultation process whether the more senior employee would be prepared to consider the more junior role at the reduced salary. Importantly, the onus is on the employer to raise this suggestion not the employee.
They also pointed to some guidance for establishing whether a lower grade job should be considered:
- Whether or not there is a vacancy
- How different the two jobs are
- The difference in pay
- The length of service of the two employees
- The qualifications of the employee at risk of redundancy
You should always properly consider and consult on the appropriate pool and keep documentary evidence of this process. It should not be assumed that just because it is a specific role that is redundant it should be the employee in that role that is made redundant - bumping should be considered as an alternative where appropriate. This does not mean that bumping must be adopted, it just means you should have considered and consulted on it and kept some evidence of this! The tribunal is yet to comment on the question of "heavy petting".