An EMPLOYER’S DUTY TO CONSIDER LESS SENIOR POSITIONS IN REDUNDANCY SITUATIONS
For a redundancy dismissal to be fair, before confirming the redundancy, an employer must (amongst other things) think about whether there are any suitable alternative positions for which the potentially redundant employee may be considered.
In the recent case of Lionel Leventhal Limited v North  EAT 0265 the EAT considered whether the employer must consider the employee for less senior positions, whether vacant or not, in order to successfully defend any subsequent claim of unfair dismissal.
What has the Employment Appeal Tribunal decided?
The EAT found that an employer may be found to have unfairly dismissed employee A if it did not consider “bumping” i.e. making employee B redundant and offering that position to employee A.
This was the case even where B holds a subordinate position on less pay. An employer cannot necessarily use the employee’s failure to register an interest in less senior roles as a defence to unfair dismissal allegations.
Ultimately, whether the employer should have considered bumping a less senior employee will depend on the circumstances of each individual case (see below).
What does this mean for employers?
The EAT has not decided that bumping must always be considered in order for a dismissal to be fair. However, a Tribunal may find, depending on the particular circumstances of the case, that bumping should have been considered on that occasion.
This means that employers should think, in every redundancy situation, whether that particular situation is one in which bumping (including to a less senior position) may be appropriate.
Evidence that this issue has been seriously considered will assist in defending any claim for unfair dismissal.
Matters that the employer should take into account when considering if bumping is appropriate include:
- Are there any vacancies, even if in less senior positions?
- How different are the roles?
- What is the difference in remuneration?
- What are the respective lengths of service of the two employees?
- What qualifications does the ‘at risk’ employee have?
- Would the other employee take voluntary redundancy?