Our next case concerns redundancy. In redundancy exercises employers have a duty to look for suitable alternative positions for any employee that is put at risk of redundancy. Sometimes an employer will deploy an at risk employee into a role that is currently occupied and dismiss the displaced employee instead. This process is known as bumping.
Mirab v Mentor Graphics (UK) Ltd
The question in this case is:
Does an at risk employee need to raise the notion of bumping for the employer to consider it?
Mr Mirab, the Claimant, was the Sales Director for the UK branch of Mentor Graphics (UK) Ltd, the Respondent. There were no other Sales Directors in the UK branch and the Claimant was responsible for Account Managers who reported to him.
The Claimant had locked horns with the Respondent’s Vice President during the course of his employment, the Vice-President was known to dismiss employees whom he disliked and dress it up as a redundancy. After a re-structuring of the Respondent’s business, the Claimant had several responsibilities taken off him and his role and the number of reporting employees was reduced.
The Claimant stated he did not take kindly to this effective demotion and did not wish to simply become an Account Manager. After some time, the Respondent decided that there was no longer a need for a UK Sales Director and the Claimant was put at risk of redundancy. The Claimant asked the Respondent whether he would be considered for a new Account Manager role.
They stated that the Claimant had previously expressed dissatisfaction at the possibility of becoming an Account Manager and there was not an opportunity to create a new Account Manager post as all present ones were full. The Claimant was dismissed by means of redundancy.
He believed the situation was engineered because he had crossed paths with the Respondent’s Vice President and initiated ET proceedings. He argued that despite being unable to create a new Account Manager role the Respondent should have considered bumping him into and existing one and making the displaced employee redundant.
The ET held that the Respondent was not under a duty to consider bumping the Claimant into an existing role because the Claimant had not raised this possibility and had previously expressed disinterest in moving to the Account Manager Role.
The Claimant appealed and the EAT held that it was not the Claimant’s duty to raise the notion of bumping but it was a range of reasonable responses test based on the facts of each case. The case will be remitted back to ET to decide whether these facts merit the prospect of bumping.
The Takeaway Point:
No, it is not the duty of the employee to raise the notion of bumping, nor is it the duty of the employer to automatically consider bumping in any redundancy situation. The merits of all bumping possibilities depend on the facts meaning that the resources, expertise and size of the employer will all be considered at ET.