Redundancies following TUPE transfers

07 Apr 2011

The Scottish case of First Scottish Searching Services Limited v McDine sheds some interesting light on the tricky situation which arises when making redundancies after a TUPE transfer.

In September 2009, FSSS acquired a similar business and took a transfer of its staff under TUPE.  Before the transfer, FSSS warned there would be redundancies (this was part of the consultation under Regulation 13).  After the transfer, FSSS created five pools of candidates, including a mix of old and newly transferred employees.


All employees were scored against selection criteria used by FSSS in a previous round of redundancies in 2008. FSSS employees were scored by their managers and the transferred employees were scored by managers who had come across with them.  All the candidates selected for redundancy were employees who had transferred to FSSS. Two of the dismissed employees claimed unfair dismissal, saying the selection process was biased.


The Employment Tribunal found in the employees’ favour because there was no system for moderating the two sets of scores. The Tribunal went on to say this meant there was a “clear and overt risk of unfairness”.  


FSSS appealed and the appeal was allowed.  The Appeal Tribunal ruled that the lower Tribunal set a standard which required perfection, rather than a lower standard of reasonableness.  There was nothing to suggest that any of the scores were unreliable and the Tribunal made no attempt to quantify the perceived risk.


This is a sensible decision, which gives an insight into how a selection exercise can be run across a newly combined workforce.  It indicates that a moderating procedure is not required in the absence of anything to suggest bias.  In this context, it was significant that FSSS checked the scores of its employees in 2009 against their previous scores in 2008 before concluding that there were good reasons for their being scored higher than their new colleagues.