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A bumpy ride

Meredith Hurst Friday, February 11, 2011

In the case ofFulcrum Pharma (Europe) Ltd v Bonasserathe employment appeals tribunal (EAT) held that an employment tribunal was correct to find that an employee had been unfairly dismissed for redundancy when her employer had identified her as the only employee at risk. It had failed to consult properly with her over whether a more junior employee should have been included in the pool for selection.

Where there is a genuine redundancy situation, a dismissal may still be unfair if the employer acts unreasonably in the redundancy process.

This includes the identification of the correct pool for selection and can also entail an employer giving consideration to offering a potentially redundant employee an alternative post already filled by another individual, and making that person redundant instead. This is known as "bumping".

B was recruited in January 2006 as an HR executive with responsibility for a team of administrative staff. Another employee C joined the company is mid 2008 as a more junior HR executive in a supporting role to B. Towards the end of 2008 B suffered a suspected heart attack. She was off work until February 2009 and during her absence, C took on some of her duties.

Shortly after B's return to work, the company announced that it would be making redundancies. It also decided to reduce the HR department and remove the executive role which B had undertaken prior to her absence.

 The company informed B that she was at risk of redundancy. B contended that both she and C should have been placed at risk. She should not have been in a pool of one. B further contended that C should be made redundant since B had more experience.

 Despite this, the company decided to terminate the employment of B and retain C. Accordingly, B was dismissed and she brought a claim of unfair dismissal.

 The employment tribunal held that as the human resources department was being reduced from two to one, the correct pool should have included both B and C.

 On appeal to the EAT, the EAT approved a finding that the employer should also have considered the possibility of "bumping"a more junior employee. The EAT also said that it was not necessary for a senior employee to tell his or her employer that he or she is prepared to accept a more junior role or a pay cut before the employer has an obligation to consider it. This places the onus squarely on the employer.

 The important lesson to take from this case is primarily the employer's failure to consult with C. It wasn't the failure to "bump"of itself that led to a finding of unfair dismissal as the employer had applied its mind to the issue. Where it fell down however, was in failing to discuss this with C. read more about redundancy here

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