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Case law: Employer should have considered 'bumping' before dismissing employee, even though the employee had not raised it

Employers should ensure that if 'bumping' is within the band of reasonable responses when considering dismissing an employee, they should consider it as an alternative to dismissal, even if the employee has not raised it as a possibility.

April 2018

This update was published in Legal Alert - April 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A sales director was dismissed when his employer decided his role was no longer required. The Employment Tribunal (ET) found that the employer had done enough to find alternatives to dismissal, even though it had not considered bumping a more junior employee – that is, making the more junior employee redundant and giving the manager their job. The ET came to this conclusion on the basis that an employer was not required to consider bumping unless the employee raised that possibility themselves. Here, the sales director had given no indication he was prepared to take a job as a more junior sales person.

The Employment Appeal Tribunal ruled that the test in considering whether a dismissal is fair is whether the employer has acted within the band of reasonable responses that could have been made by an employer in the circumstances. Therefore, if bumping is within that range of responses, it should be considered. There is no rule that it should only be considered if an employee raises it as a possibility themselves.

Operative date

  • Now

Recommendation

  • Employers should ensure that if bumping is within the band of reasonable responses when considering dismissing an employee, they should consider it as an alternative to dismissing the employee, even if the employee has not raised the possibility themselves.

Case ref: Mirab v Mentor Graphics (UK) Ltd UKEAT/0172/17/DA

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