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In Fulcrum Pharma (Europe) Limited v Bonassera the EAT addressed the issue of 'bumping' and the circumstances when it is appropriate to include more junior employees in a pool for possible redundancy.
In Bonassera, Fulcrum’s HR department consisted of 2 employees, a HR Manager (Bonassera) and a HR Executive. Following a consultation process, Bonassera was made redundant. The Executive was not included in the pool for possible redundancy.
The tribunal ruled in favour of Bonassera by deciding that his employer, Fulcrum, had not properly consulted with him or the Executive on the size of the pool and that Fulcrum should have had a pool of 2 for the redundancy. Although Fulcrum had documented its consideration of 'bumping' the Executive they had never discussed this decision with the Bonassera. Fulcrum appealed.
The EAT found that both Bonassera and the Executive should have been included in the relevant pool. When deciding whether to include a more junior employee in a redundancy pool (with a view to potentially 'bumping' out the more junior employee) the correct approach was to consider the following: whether there is a vacancy, how different the 2 jobs are, the difference in remuneration between the 2 roles, the relative length of service of the 2 employees, the qualifications of the employee in danger of redundancy, and any other factors applying to the particular case.
The case was submitted back to the tribunal for it to reconsider the case in light of the above approach.
This case highlights that identifying a pool for possible redundancy can be very complicated. It is not sufficient to simply identify a role which the employer believes to be redundant and consult with only that employee. The employer needs to consider the function that is being affected as a whole and ensure that all affected employees are properly consulted.
