The Practice of 'Bumping' in Redundancies

A recent determination from the EAT of Bennett v Bunzl Ireland Limited [2009] UD2409 brought up a very interesting outcome and one which may have potential ramifications in redundancy scenarios in Ireland. In this case the employee worked for a cleaning and safety products company in the capacity of Sales Representative. When a new Sales Director joined in 2008 he decided to appoint two sector leaders, one for the North and East of the Country, and one for the South and West. Mr. Bennett applied for the position for South and West sector leader and was successful in July 2008. By the first quarter of 2009 the Company decided to cut costs and make some positions redundant, one being that of Mr. Bennett. he was invited to a meeting to discuss sales progress however when arrived was notified he was being made redundant and given a letter to this effect. he was invited to apply for a newly created position of key account manager, which he was unsuccessful in. Mr Bennett criticised the format and notice given of the interviews, but was unsuccessful on appeal. Decision In their determination the EAT held that a redundancy situation did in fact exist in the Company, however in a scenario we see occurring more and more frequently in decisions, the Tribunal noted that Subsection (7) of section (6) of the Unfair Dismissals Act, the "reasonableness or otherwise of the conduct of the employer" is taken into account. The Tribunal further noted that the position that Mr. Bennett was promoted from less than a year previous still remained in the Company, and cited the case of Thomas and Betts Manufacturing  Ltd. -v- Harding (1980) IRIR255 where it was held that an employees dismissal was unfair as they should have been offered alternative work as a packer (a position they formerly held) even though this may have meant dismissing someone else. It was held that by failing to explore the possibility of Mr. Bennett reverting to his previous position, the Company had not acted reasonably under the Unfair Dismissals Act, as highlighted above. Subsequently the employee was awarded €40,000 as compensation. Bumping This practice of making someone else redundant is commonly referred to as "Bumping" (as you 'bump' another employee out of their position) and is a well established practice in the UK.  This case is one of the first of its kind in Ireland as the practice of 'bumping' is rarely utilised in Ireland, and rarely referred to in determinations. In the case of North v Lionel Leventhal Ltd (2004) the employee was a Senior Editor and was made redundant. The only alternative role that he could have been offered was a more junior role, however he did not ask his employer to ‘bump’ him and it was assumed by the employer that as he had not raised the possibility of a junior role he would not consider it. The employer failed to offer this junior role and the employee argued that he had been unfairly dismissed, and it was held the employer had acted unfairly by failing to give proper consideration to this alternative employment.  The employer appealed the decision to the EAT, however they upheld the decision of the Tribunal, and added that there is no absolute rule that an employee must initiate discussions about a more junior role and employers may not necessarily rely on such a failure as being a defence to an allegation of unfair dismissal. However, the EAT did not state that there was a duty on employers to consider bumping in every case, rather that whether it was reasonable for the employer to consider bumping would depend on a number of factors namely:-

• Whether there is a vacancy for the junior role
• How different the two jobs are
• The difference in remuneration between the two jobs
• The relative length of service of the two employees
• The qualifications of the employee in danger of redundancy
• Other factors which may apply in a particular case

Irish Perspective The UK case above is important from an Irish Perspective when considering alternatives to Redundancy, bumping will not occur in every situation however a number of factors will be taken into account when considering if this is an appropriate step to take, and an employer must be fair to both employees concerned. There must be justifiable reasons for making employee No. 2 redundant and giving employee No. 1 his job, as employers should remember that if employee  No. 2 is made redundant he could potentially take a claim unfair dismissal (if he has over one years service), so  a fair consultation procedure must be followed in both cases.  It seems from the UK perspective that a tribunal will want to see that the employer at least considered ‘bumping’ and did not dismiss the possibility because they assumed that the employee would not take a more junior role. We will wait and see how this affects future determinations but for the moment an employer should be aware of the option and if necessary explore this.