An employer who had just acquired a workforce under TUPE selected for redundancy by asking the managers from the original and transferred workforces to apply the criteria (including some subjective criteria) to their own staff, without including any process for moderating the marks given.

The EAT has overturned a tribunal decision that this was inevitably unfair, as the tribunal had failed to consider what moderation could have been done, whether it gave rise to a substantial risk of unfairness, and whether this would have had any impact on the claimants' scores. It was difficult to see what means of moderation could have been devised and, while something might have been devised in a perfect world, it was not a requirement of reasonableness in the circumstances.

The situation would probably be different where there is a longer period between the TUPE transfer and the redundancy exercise and therefore more opportunity for managers to experience the work of employees originally from the other workforce.

It might also be different where a claimant puts forward a more convincing argument as to what moderation could have been done, and where there is no plausible explanation for all/most of the transferee's employees being marked higher. In this case the higher marks could be explained by the fact that the original workforce had already been through a recent redundancy round and had upped their game as a result. (First Scottish Searching Services v McDine, EAT)