Barlow v Horwich Farrelly Solicitors

The Employment Tribunal (ET) has ruled that a claimant was not unfairly dismissed after being made redundant and having their bumping request denied.

A redundancy situation exists where organisations shut down a business or part of it completely; shut down at a specific location (even if you are moving to a new location); or the requirement for employees to do work of a particular kind has reduced or come to an end.

It is crucial that an organisation is fair in how those who are to be made redundant are selected. Organisations must also be fair in the criteria they choose and the way in which scoring or grading takes place. 

In certain circumstances, it might be justifiable to retain an employee who would otherwise be made redundant by virtue of their post disappearing. This can be done by slotting them into another role 'bumping out' the employee currently occupying that position.

This may be appropriate where the employee who you wish to retain has skills and attributes that are key to the organisation. However, such bumping must be done with care as it could be unfair to the person who is bumped out and whose role would otherwise not be made redundant.

FACTS

The claimant, Ms Barlow, began working for the respondent’s subsidiary, Zest Legal, in 1987 as a secretary. As she progressed through the company, her role changed to that of client relationship and development coordinator in 2011, as well as working as a personal assistant to the head of the company. 

In 2017, Zest Legal went through a period of winding down, rendering 14 staff redundant and redeploying 12 others to existing roles in other departments. During this period, Ms Barlow’s knowledge and expertise proved useful to the company and she played a considerable role in the winding down process which lasted for a period of two years. However, in 2019 after the winding down of Zest Legal was complete, Ms Barlow was informed that her role was at risk of redundancy.

As her role was independent, Ms Barlow was told that there would be no selection pool and that the only alternative roles available were lower ranking and carried lower salaries. Ms Barlow argued that although Zest Legal had wound down, she was still employed by its parent company, Horwich Farrelly Solicitors (HFS), and thus a fair process would call for all others within HFS who had the same role as her to also be at risk of redundancy. She put forward the option of bumping a HFS employee in order for her to move into their role. HFS rejected this, arguing that it had considered the option and had determined that doing so would not be an appropriate action to take.

Ms Barlow’s role was made redundant shortly after as she had rejected the lower paid role offered to her. She appealed this decision with HFS unsuccessfully and thus brought a claim of unfair dismissal to the ET.

ET

The ET rejected the claim that Ms Barlow had been unfairly dismissed. The fact that she had accepted that a redundancy situation had arisen meant that the ET simply had to consider whether HFS could have considered bumping by creating a selection pool of all its own staff performing the same role as Ms Barlow. To this the ET held that it was indeed appropriate for Ms Barlow to have been the only one in the selection pool as her role was the only one at risk of redundancy and that an organisation is not legally obligated to bump another employee or consider this as a suitable option. 

It went on to state that it would have been a reasonable response if HFS had chosen the bumping route but since they did not, for sound and genuine business reasons, it was up to Ms Barlow to show that the decision was unfair. In this case, she had not successfully proven HFS’s decision to be unfair.

Note for employers

Whilst this case is only at ET level, it should act as a reminder to organisations that it is always important to carefully consider the selection pool in a redundancy situation. Although it will not always be appropriate to have a pool, there must be evidence to show that they have carefully considered the situation and acted fairly and proportionately. 

Organisations should also be reminded that they are not under a legal obligation to consider bumping. It is up to individual organisations to act reasonably on the facts of their specific situation. If bumping is ever considered or carried out, organisations should keep written records of this in case the fairness of the decision is ever challenged at an ET.

Source: CIPD HR-Inform

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