Redundancy Selection after TUPE Transfer

[Thanks to Dr John McMullen of Short Richardson & Forth LLP for preparing this case summary]

The EAT (The Honourable Lady Smith presiding) has handed down its decision in First Scottish Searching Services Ltd v McDine (EAT/S/0051/10), which is authority for the proposition that when two separate sets of scores in a process of selection for redundancy following a TUPE transfer were applied to two different groups of employees, one group previously having been in the employment of a transferor, and the other in the employment of a transferee, it was not unfair not to have used a system which might have moderated the risk of any inconsistency in scoring between the two groups.

The employment tribunal had made no findings of fact about what system of moderation might have been put in and what difference it might have made. Nor was it established that the process had been carried out in bad faith, in order to favour the transferee's employees. The employment tribunal had wrongly substituted its own view for that of a reasonable employer (contrary to Iceland Frozen Foods Ltd v Jones [1982] IRLR 439) and embarked on an impermissible re-assessment of the scores made (contrary to British Aerospace plc v Green [1995] IRLR 433).