TUPE: Moderating selection criteria results

In First Scottish Searching Services Limited v McDine and Middleton, the EAT found that where there had been no process of moderation between the scores of the pre-transfer and post-transfer employees, the dismissal was not necessarily unfair. 

The Claimants had become the employees of First Scottish, following a TUPE transfer.   They accepted that there was a genuine redundancy situation, but they believed that First Scottish had deliberately organised its selection system so that the pre-transfer employees were retained over new employees.  The ET found that there had been no moderation between the scores and assumed that this would cause a differential in the scores.  The EAT found that the ET failed to consider the extent of that risk.   There was insufficient evidence to assume that the Claimants' scores would have been higher - there must be evidence of actual unfairness.

The case shows that the mere risk of unfairness in a redundancy selection process (with no demonstration of actual unfairness) is not enough to render a dismissal unfair.   However, had the employees been able to show that they would have performed better had the scores been moderated then their case could have succeeded.  Careful consideration should therefore be given to the use of selection criteria in these circumstances.