FAIR SCORE

First Scottish Searching Services Ltd (FSSS Ltd) v McDine and Middleton

Once a tribunal has found a potentially fair reason for dismissal, it then has to decide whether the employer acted reasonably in dismissing the employee. In First Scottish Searching Services Ltd (FSSS Ltd) v McDine and Middleton, the Employment Appeal Tribunal (EAT) said that employers do not have to check that the scoring system they use for choosing who should be made redundant is applied consistently between two different groups of employees.

Basic facts

Following a TUPE transfer, FSSS Ltd announced that the firm had to make redundancies and decided to use the same scoring matrix that it had used the year before when it had carried out another redundancy exercise.

Five of the criteria (timekeeping and reliability; disciplinary record; length of service; performance and quality; individual skills) were objective. But three were subjective (responsibility and new practices; attitude and enthusiasm; interpersonal skills).

Existing employees of FSSS Ltd were scored by their own managers. Employees who had transferred over were scored by their old managers. Although all the managers used the same matrix, the claimants complained that it was biased and discriminated against them.

They claimed unfair dismissal.

Tribunal decision

And the tribunal agreed, saying that the absence of a system to check that the scoring had been applied consistently between the two sets of employees meant that the scores could not be "moderated".

It concluded that the cumulative effect of the subjectivity in the scoring criteria, the absence of consistency of appraisal systems between the two businesses, and the absence of any moderation of the two sets of scores rendered the selection process unfair (in the sense that it did not fall within the range of fairness and reason).

EAT decision

But the EAT disagreed, saying that the tribunal decided that the system was unfair because of a risk that the scores might have been different had the employer had a system for moderating them.

However, it had failed to assess the extent of this risk, and had not made a finding as to whether the claimants suffered as a result. Instead it had made an assumption that if the employer had moderated the scores, the claimants would have scored more. Nor had it found any facts to substantiate the claimants' complaints about bias on the part of FSSS Ltd in favour of their own employees.

In addition, the EAT said the tribunal had failed to consider the substantial impact of the claimants' length of service on their scores, a completely objective measurement that "no type of moderation could have affected".

The EAT concluded that the tribunal had substituted its own view for that of a reasonable employer, contrary to Iceland Frozen Foods Ltd v Jones.

It upheld the appeal and found the dismissals were fair.