Many employers, their HR teams and their lawyers have considered that when employees have been transferred to them under TUPE, that it is impossible to change the terms and conditions of the transferred employees, without risking breaching the TUPE regulations.
What is bumping?
Bumping is the process of moving a potentially redundant employee into another role, and making the employee currently performing that role redundant.
Does an Employer have to consider “Bumping” in redundancy situations?
In Mirab v. Mentor Graphics UK Limited the Employment Appeal Tribunal (EAT) considered whether employers are required to consider bumping junior employees if the redundant employee has not suggested that it do so.
Employment Appeal Tribunal ruling
The EAT upheld two grounds of appeal in relation to the tribunal’s decision on bumping. It said that the tribunal was wrong to have interpreted existing case law to have created a rule that the employer does not have to consider bumping unless the employee suggests it. In some cases, it might be open to a tribunal to find that it was reasonable of an employer not to consider bumping unless and until it was raised by the employee, but there is no rule that this is always the case. Additionally, in this case, there were indications that the employee had, in fact, raised the possibility of take on an account manager’s position, and it was therefore perverse of the tribunal to have held that there was no sign that the employee had offered to do so.
Do employers have to bump employees?
Case law has already made it clear that there is no general obligation on an employer to consider bumping, but that there may be some circumstances where it would be unreasonable for an employer not to consider doing so. This case reiterates that there may be cases where it might be reasonable for an employer to essentially create a vacancy at the expense of another employee by bumping that employee. Considering, whether there are any obvious candidates for bumping is something employers should take time to consider.
More information about redundancies can be found here: http://www.acas.org.uk/index.aspx?articleid=1365