Holding on for a bumpy ride | Employment Law
What is bumping?
Bumping is a term that is heard of when talking, primarily about redundancy situations. To put it in simple terms bumping is a process of moving a potentially redundant employee (A) into another role and dismissing the employee currently performing that role (B).
Therefore, for it to be a true bumping situation moving employee A into another role must be the cause of employee B losing their job.
Choosing who you should bump
Whether to use or consider bumping and who you should choose to bump are important questions that employers and HR professionals need to think about. In the case of Fulcrum Pharma (Europe) Ltd v Bonassera and another UKEAT/0198/10 the EAT gave some guidance. It was stated that the following should be considered:
- Whether or not there is a vacancy.
- How different the two jobs are.
- The difference in remuneration between them.
- The relative length of service of the two employees.
- The qualifications of the employee in danger of redundancy.
- Any other factors applying to the particular case.
Must an employer consider bumping?
Although there is no legal obligation to consider bumping, it can be the case that if employers do not consider bumping then the dismissal of an employee that they have made redundant can be considered unfair. However, it is important to remember that such cases are fact specific. Therefore, although it is not compulsory to consider bumping it could be argued that it is best practice for an employer/HR professionals to always consider whether bumping is a possibility and a paper trail should be kept to show that bumping has been considered even if it is concluded that bumping would not be appropriate in that particular situation.
In addition, when the employer is meeting with the employee in redundancy consultation meetings and discussing ways that redundancies could be avoided such as reducing hours and job sharing etc suitable alternative posts could be discussed with the employee including posts where it may mean that bumping would be applicable.
There are several cases where a dismissal has been considered unfair due to the lack of bumping consideration. One such case can be seen below:
- a human resources team was made up of two employees; a HR manager supported by a HR executive. It was decided that they no longer needed the HR manager and therefore the HR manager was made redundant, the HR executive was not included in the pool of potentially redundant employees. It was decided that both HR employees should have been in the pool and therefore the manager’s dismissal was unfair. In particular, it was noted that the manager had previously carried out the executive’s role and the executive had previously covered the manager’s role when she was on sick leave.
If you would like further advice regarding this or any other employment issues that you might have then please feel free to contact the Thursfields employment team who will be happy to help.