The Employment Appeal Tribunal (EAT) has held in Mirab v Mentor Graphics (UK) Ltd that, in a redundancy situation, the onus is not necessarily on the employee to raise the possibility of “bumping” someone else out of their job to save them from redundancy. Instead it is for the tribunal to determine whether, on the particular facts of the case, what the employer did fell within the range of reasonable responses.
Basic facts
After a reorganisation Mr Mirab, the company’s UK sales director, complained that he had effectively been demoted to the position of account manager, although he subsequently accepted the changes that had been made.
Because of poor growth figures, however, the company decided it no longer needed a UK sales director and Mr Mirab was told that he was at risk of redundancy. During the consultation discussions that followed, he asked if he would be considered for the role of account manager. He was told that no position was available and there was no guarantee that a new post would be approved.
After three consultation meetings, he was made redundant. At his appeal, his suggestion that his position should be compared with account managers in areas outside the UK was rejected on the basis that the company only had to consider UK jobs; and that, in any event he had not been an account manager and had previously refused to take an account manager role.
He claimed unfair dismissal on the basis that his dismissal had been engineered by the vice president of his division with whom he had crossed swords fairly early on in his employment.
Tribunal decision
Although the tribunal accepted that the vice president may not have liked Mr Mirab, it did not consider that was the reason for his dismissal. Instead, it held that he had been dismissed because of continuing poor sales in his division.
In deciding whether the dismissal had been fair, the tribunal concluded that the company had done enough in terms of looking for alternative jobs. However, had Mr Mirab asked the company to consider “bumping” another account manager out of their job so that it could be given to him, it would have had to consider doing that. However, not only had he failed to do so, there was “no sign” that he had ever offered to take an account manager position. As there was no onus on the company to consider the possibility of “bumping” the tribunal held that there was nothing more it could have done to avoid the dismissal by reason of redundancy.
In considering the fairness of the process that it followed, the tribunal accepted that the internal appeal had been “superficial” but considered the appeal was only relevant to an unfair dismissal claim if the original process had been unfair which was not the case here.
EAT decision
The EAT, however, held that the tribunal was wrong in the way that it had approached the company’s obligations to look for alternative jobs for Mr Mirab. Firstly there was no “rigid rule” that the onus is always on the claimant to raise the possibility of “bumping” another employee before the employer can consider it; and secondly, there was at least one occasion when he had, in fact, offered to take an account manager’s position.
Equally, however, the EAT made clear that there was no rule that an employer must always consider bumping in order to dismiss fairly in a redundancy case. Instead it is for the tribunal to determine, on the particular facts of the case, whether what the employer did fell within the range of reasonable responses.