Let’s get our terms straight to start with. Redundancy selection is where you have more than one person (say, A and B) carrying out a role for which the employer’s need has diminished, and then choosing which of them to let go. Bumping is where you have chosen the employee who is notionally redundant but then makes to preserve his employment by bumping out (dismissing) someone else entirely, the surprised and blameless C.
The potential injustice to C in this is obvious, and it will generally only be in the most unusual circumstances that employers will actually bump someone in this way. It is fairly well-established that the employer will never be under a positive obligation to A or B to dismiss C. However, the question for the Employment Appeal Tribunal in Mirab –v– Mentor Graphics (UK) Limited last month was how far it is a pre-requisite of a fair redundancy that the employer is seen at least to have considered bumping, even if it then rejects the idea.
The detailed facts of Mirab don’t add much to the legal and practical lessons it contains. In brief, Dr Mirab held a stand-alone Sales Director role which Mentor decided that it no longer needed. This followed earlier discussions about Mirab’s responsibilities and departmental structure in which he had kicked against any implied demotion to Account Manager, claiming (probably rightly) that it would entitle him to claim constructive dismissal.
When it came to the proposed redundancy, Mirab made brief reference in his consultation meeting to dismissing the Account Manager instead. It was not clear whether that was with a view to his taking up that role, or simply on the grounds that the savings from losing the Account Manager would enable Mentor to retain him as Sales Director. Mentor read his reference as the latter. On that basis, plus Mirab’s strong earlier resistance to becoming Account Manager and the absence of any Account Manager vacancy, Mentor did not consider whether the Account Manager (C in our example above) should be bumped out. The Employment Tribunal found Mirab’s dismissal fair, but the EAT was not convinced. In particular, it noted:
- consideration of bumping is just one ingredient to go into the pot to determine overall fairness, but is not determinative of that question by its presence or absence;
- there is no general rule that an employer is obliged to consider bumping on a pro-active basis, i.e. without the employee even raising it;
- Mirab’s earlier resistance to a move to Account Manager was relevant to whether Mentor was reasonable not to look at bumping, but not determinative of it – much as when considering alternative vacancies in a redundancy situation, a more junior replacement role may not be something the employee would consider in the ordinary course, but he may become more flexible once confronted with the option of losing his employment altogether.
If the employee does expressly raise the suggestion of bouncing out someone else in order to keep him, the employer should be seen to consider that suggestion. However, because there is no positive obligation to bump, that consideration can literally be the work of minutes only – is there any pressing reason why it would be in our best interests to retain A or B at the expense of C? In essence, it takes as much time to consider whether you should look at bumping as actually doing the looking so you might as well do it.
While passing, the EAT also took a moment to comment on two other nice-to-know points arising from the ET’s original decision:
- The Tribunal had found some less than perfect aspect of Mirab’s appeal, but decided that this could not affect the fairness of his dismissal because a mishandled appeal could not prejudice the statutory fairness of a properly conducted dismissal process. In other words, it thought, while a good appeal process could heal defects in the original dismissal, a bad process could not taint what was otherwise fair. The EAT rejected this proposition outright – even if you are confident in the original dismissal, conducting the appeal properly is therefore still important.
- On the other hand, the EAT agreed with the Tribunal that there had to be limits on its obligations to justify its ruling. Mirab had made the sort of detailed legal submissions which every Tribunal and employer representative dreads, challenging it to explain its position by reference to “some 26 case authorities spanning 47 years of employment law jurisprudence in support of some 20 propositions of law“. The EAT did not consider the Tribunal’s decision in any way prejudiced for its not having dealt with them all, hinting at the principle long understood by experienced ET representatives that your chances of success are generally in inverse proportion to the number of cases you cite.