UK: Employment Appeal Tribunal Clarifies Rules On ‘Bumping' Staff

Last Updated: 21 May 2018
Article by Lydia Newman

Employment round-up looks at Vento bands, discussions during proceedings breaks, and full particulars for Employment Tribunal claims

In the case of Mirab v Mentor Graphics (UK) Ltd, the Employment Appeal Tribunal found that consideration of 'bumping' is not compulsory for an employer, but is subject to the range of reasonable responses.

Bumping is a potential alternative to redundancy, where a potentially redundant employee (employee A) moves into the role of another employee (employee B) who was not in a redundancy situation. Employee A will then fulfil employee B's role and employee B will be dismissed on the grounds of redundancy.

Although this outcome may be good for employee A and the employer, employee B may bring a claim for unfair dismissal.

Conversely, in this case the respondent did not consider bumping and the claimant argued this was unfair. The question was whether the respondent needed to consider bumping as part of the redundancy process.

It was initially decided by the Employment Tribunal that the claimant had been fairly dismissed on the grounds of redundancy. The respondent had considered alternatives and, as the claimant had not raised the issue of bumping, it had not been required to consider that instead of dismissal on the ground of redundancy.

"Bumping does not have to be raised by the claimant for it to be considered by the respondent"

Yet on appeal the Employment Appeal Tribunal found that bumping does not have to be raised by the claimant for it to be considered by the respondent. However it does not, as a rule, always have to be considered. It should be decided on the facts of the case whether the decision of an employer to consider bumping was among the reasonable responses.

It is therefore important in any redundancy situation to consider whether bumping could be an option and to record the decision and reasons for this decision, with a view to producing this evidence should an issue arise in respect of any dismissal.

Change to Vento bands

One form of compensation that can be awarded in unlawful discrimination cases is an award for injury to feelings.

This is discretionary compensation for non-economic loss, such as for hurt and upset caused to the claimant. The level of the award made is based upon the seriousness of the impact of the discrimination on the claimant, under what are known as the Vento bands.

On 6 April, the presidents of the Employment Tribunals in England, Wales and Scotland announced a raise in the Vento bands, which are slightly amended from those announced in November. The new bands, which apply from 6 April 2018, are:

  • For less serious cases: £900 to £8,600
  • For middling cases: £8,600 to £25,700
  • For severe cases: £25,700 to £42,900
  • For exceptional cases higher awards may be made.

As is apparent from the wording of the guidelines, any such awards are entirely at the discretion of the presiding judge. Thus in cases that might involve unlawful discrimination more care should be taken.

In the related recent case of Gomes v Higher Level Care Limited, in which the claimant brought a successful claim for breach of the Working Time Regulations 1998, it was held by the Employment Tribunal, Employment Appeal Tribunal and subsequently the Court of Appeal that an award could not be made for injury to feelings for a claim relating to the regulations

This follows a decision by the House of Lords in Dunnachie v Kingston upon Hull City Council, in which it was ruled that no award could be made for injury to feelings in unfair dismissal cases. These cases have upheld the position that injury to feelings awards are generally only applicable to discrimination and potentially whistleblowing cases.

Strike out for discussing case

In the recent case of Chidzoy v BBC, the Employment Tribunal found that it was unreasonable for the claimant to discuss her case with a journalist during a break in proceedings while she was under oath. This decision was subsequently upheld by the Employment Appeal Tribunal.

The facts were that the claimant was giving evidence on the third day of an 11-day hearing for her claims of sex discrimination and whistleblowing. The hearing was adjourned for a comfort break and the claimant warned that she was under oath and should not speak to anyone about the case during the adjournment. However, she was seen speaking to someone later identified as a journalist.

The respondent later applied for the claimant's claim to be struck out on the basis of her unreasonable conduct. The Employment Tribunal, following further evidence, did so.

The appeals body agreed that this was a decision the tribunal was entitled to make because the claimant's conduct was unreasonable and that because of the breakdown in trust a fair trial could not be heard.

This case reminds us of the importance of complying with tribunal rules and procedures, especially during proceedings, as well as the opportunities that can arise because of another party's breach. The claimant here paid the ultimate price and lost the right to continue with the claim.

A particular claim

Under the Employment Tribunal rules a respondent can apply for a claim to be struck out without a hearing if it 'cannot be sensibly responded to'. However, this is not to say it is likely that such a claim will be successful.

There is increasing authority from the tribunals to suggest employers should be able to infer what the case against them is from an ET1 form – used to make a claim against an employer, potential employer or trade union – and therefore the claim can be sensibly responded to.

In the case of SoS BEIS v Parry and the Trustees of the William Jones School Foundation the claimant was dismissed and on the next day rehired in a different role. An ET1 was lodged on her behalf by solicitors, indicating her claims were for unfair dismissal and arrears of pay.

"Employers may be subject to an onerous requirement to respond to claims for which they do not have the full particulars"

It stated that the particulars were attached, but the solicitors attached the wrong particulars of claim. The tribunal staff referred the ET1 to a judge to be rejected on the basis that it could not sensibly be responded to, but the judge accepted the claim.

On receipt, the respondent applied for the claim to be rejected on the same grounds, but another judge held that a second application could not be made.

The Employment Appeal Tribunal held that the first judge had acted perversely, but that although the claim could not be responded to sensibly, it was beyond the scope of the Employment Tribunal to reject it and was ultra vires. As a result it could not be relied upon.

However, the Court of Appeal disagreed with the appeals body on both counts. It held that the ET1 could be sensibly responded to on the basis that the respondent was aware that the claimant had been dismissed. Further particulars could be provided and responded to at a later date.

In addition, it was confirmed that the rule was not ultra vires. It was noted by the Court of Appeal that an Employment Tribunal may reject a claim for discrimination that was not particularised on the basis that it could not be sensibly responded to.

Even so, it is the case that employers may be subject to an onerous requirement to respond to claims for which they do not have the full particulars. As a result, employers should ensure that claims are responded to within the required time limits.

However, tactically, applications for rejection or strike out could still be used as part of the response process. If these are unsuccessful the claimant could still be required to supply detailed particulars to which the respondent could then provide a revised, more substantial response.

Statutory pay for 2018–2019

Last month, rates in statutory payments had their annual increase. The new rates are:

National Living Wage

For employees aged 25 or over: £7.83 an hour.

National Minimum Wage

  • Employees aged 21–24 inclusive: £7.38 an hour
  • Employees aged 18–20 inclusive: £5.90 an hour
  • Employees under 18, but above compulsory school leaving age: £4.20 an hour
  • Apprentices under 19 or in the first year of apprenticeship: £3.70 an hour.

Other types of pay

  • Statutory maternity, adoption and shared parental leave: 90% average weekly earnings for six weeks, followed by £145.18 or 90% of employee's average weekly wage
  • Paternity leave: £145.18 a week or 90% of employee's average weekly wage
  • Employers can reclaim 92% of such payments from HMRC if total Class 1 National Insurance contributions are above £45,000 for the previous tax year or 103% of payments if such payments are below this amount
  • Statutory sick pay: £92.05 a week.

Lydia Newman is an employment solicitor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions