Reorganisation or change in duties 





Whether a reorganisation or change of duties results in a redundancy situation depends on the kind of work the employee was required to do before and after, and the extent of the change. Tribunals should always apply the statutory test set out on page 380 (section 139, ERA 96). For example:


The dismissal of employees and their replacement with non-employees (for example, agency workers, or even the same individuals engaged through an umbrella company or as franchisees) is likely to create a redundancy situation. This is the case even if they do exactly the same work as the dismissed employees (Bromby & Hoare Limited v Evans [1972] ICR113, Hodgkins v CJB Development Limited [1984] EAT/948/83). This is because the statutory test (section 139, ERA 96) looks for a reduction in the employer’s need for employees (not a reduction in manpower). Even though the employer has the same manpower requirements following this kind of reorganisation, their need for “employees” has reduced. 



An employer does not have to point to financial problems leading to a decline in work to justify redundancies. Indeed, there can be a redundancy situation where a successful employer with lots of work decides to reorganise (Kingswell and others v Elizabeth Bradley Designs [2003] UKEAT 0661/02/1902).



Although a tribunal will not second-guess an employer’s business decision to make redundancies, it will still want to see good evidence of that business case to make sure redundancy is the true reason for the dismissal and not some hidden reason, such as capability or trade union victimisation.


The law permits a practice known as bumping. This is what happens when an employee whose own role becomes redundant is offered another employee’s job, resulting in that person’s dismissal. This will be a redundancy dismissal even though the dismissed employee’s role still exists and is filled by someone else. This is because the reason for dismissal is that the employer’s requirement for employees to carry out work of a particular kind has diminished. Whether the dismissal is fair is a different issue. 



Failing to consider bumping can sometimes make a dismissal unfair (Lionel Leventhal v North [2004] UKEAT 0265/04/2710). There is no rule that an employer must always consider bumping to dismiss fairly, especially if this involves a move to a less well-paid or more junior role. As always, what is fair depends on the “band of reasonable responses” available to the employer (Samuels v University of Creative Arts [2012] EWCA Civ. 1152). If bumping is appropriate, the employer should normally consider it even if the employee does not raise it (Mirab v Mentor Graphics (UK) Limited [2018] UKEAT/1072/17/DA). 



Agency workers have no protection from redundancy and one common form of “bumping” is the replacement of temporary agency workers with permanent employees at risk of redundancy. This is not a breach of the Agency Worker Regulations 2010 (AWR). Although the AWR require a hirer to tell an agency worker about any permanent vacancies, they do not entitle the agency worker to compete for a vacancy alongside a permanent worker who is at risk of redundancy (Cole v Ministry of Defence [2015] UKEAT/0403/14/RN). For more information on the rights of agency workers, see Chapter 2, pages 53-60.