Shiva Shadi, Partner and Head of Employment at Davis Blank Furniss

The EAT case of Mirab –v- Mentor Graphics (UK) Limited has made life somewhat more difficult for employers in redundancy selection processes.

Bumping occurs when an employee whose role is redundant is re-deployed into another role (already being held by another employee) of the original post holder.  In this case the Claimant’s role had been made redundant and whilst the Employment Tribunal held that it was a fair redundancy dismissal and the Respondent had done enough in looking for alternative positions for the Claimant, it was not required to consider bumping as it wasn’t a point raised by the Claimant during the process.

The EAT disagreed with this decision and said it was an error.

The EAT has stated that whilst there is no legal rule saying that an employer must always consider bumping in order to dismiss fairly in a redundancy situation, by the same token there is no legal rule that says an employer does not need to consider bumping unless the employee raises it.

The EAT stated that in considering these cases a Tribunal would always look as to whether the employer’s decision one way or the other fell within the range of reasonable responses.  It is therefore advisable to look at bumping options in relevant circumstances, which is never an easy decision for employers to make.


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