The decision of the EAT in First Scottish Searching Services Ltd v Mr T McDine and Mr JP Middleton may bring some comfort to employers looking to make redundancies following a TUPE transfer.
The Tribunal found that dismissals following the transfer were unfair in the absence of ‘some system of moderating’ two sets of scores for two groups of employees – one group having previously been in the employment of the tranferee and the other having previously been in the employment of the transferor.
On appeal, it was found that the Tribunal erred and it was not open to them to conclude that the dismissal was unfair by reason of the risk identified by the Tribunal.
This is always a practical problem in such situations. Whilst the notion of moderation is an admirable one, practically it is very difficult where managers scoring one group of employees have no prior knowledge or experience of employees in the other group.
In short, this case suggests that the single defect of absence of moderation, in a post TUPE redundancy situation, is not sufficient alone to render dismissals unfair.