When making an employee redundant, must the employer always consider bumping?

Employers are not always obliged to consider bumping. However, in North v Lionel Leventhal Ltd [2005] All ER (D) 82 (Jan) EAT, the Employment Appeal Tribunal (EAT) held that, in certain cases, it may be unfair not to consider bumping a more junior employee, even where the potentially redundant employee has not indicated that he or she would accept a subordinate position. The EAT stated that whether or not there is an obligation to consider bumping in a particular case depends on:

  • whether or not there are other vacancies;
  • how different the two jobs are;
  • the difference in remuneration between the two jobs;
  • the relative length of service of the two employees (although the employer should be aware of the risk of age discrimination);
  • the qualifications of the employee at risk of redundancy; and
  • whether or not the other employee would take voluntary redundancy.

The employer should retain written records of this process so that if the fairness of a redundancy dismissal is challenged it can show that it considered bumping as an option.