Employment law update – failure to consider bumping makes redundancy dismissal unfair.

There may be occasions where an employer has to make redundancies when it is necessary to consider offering a potentially redundant employee an alternative role already held by a second person, and making the second person redundant instead. This is known as bumping. A failure to consider bumping may make the dismissal unfair.

Ms Bonassera was the HR Manager for Fulcrum Pharma (Europe) Ltd. The HR function also had a more junior role, an HR Executive, which reported to Ms Bonassera. The company had to make a number of redundancies and proposed to remove the HR Manager's role altogether, keeping the HR Executive position. Ms Bonassera was in a pool of one as she was the only HR Manager.

During the consultation period Ms Bonassera put forward a number of alternatives to redundancy. One of these was the HR Executive should be made redundant. Ms Bonassera suggested that she could have greater experience and had performed both roles during her time with the company. She did not propose a salary cut, but said she might work four days a week on a pro rated salary.

The proposals were considered but in the end they were rejected and Ms Bonassera job was made redundant. She claimed that the failure to consider bumping made the dismissal unfair.

In the Employment Appeal Tribunal, the court agreed. While employers do have a good deal of flexibility in establishing a selection pool, in this case the employer had been wrong to limit it to one on the basis that the post to go would be that of the HR Manager. While the employer had considered the issue of pooling it had not discussed it with Ms Bonassera as part of the consultation process. So far as the requirement to consider bumping went, there is no need for an employee to tell the employer that he is willing to consider a more junior role or pay cut before the employer is obliged to consider it.

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