EAT overturns finding that secondee became employee of host company

Background

In Bank of Africa UK PLC & Ors v Hassani, the claimant was employed by BMCE Bank of Africa from 2013 and was seconded in 2016 to Bank of Africa UK plc as Head of HR. The secondment agreement and accompanying letter expressly stated that she remained employed by BMCE throughout the secondment.

Following a breakdown in relations with senior management in London, and after raising concerns about regulatory compliance and governance, the claimant was placed on garden leave and the secondment was ultimately brought to an end. She returned to a role with BMCE.

She brought wide-ranging claims including whistleblowing detriment and automatic unfair dismissal for whistleblowing against the UK entity and two senior individuals.

The Tribunal held that, as at 8 January 2021, the claimant had become an employee of the UK company and that she had been automatically unfairly dismissed for whistleblowing. It also upheld parts of her whistleblowing detriment claim.

The respondents appealed.

EAT decision

The EAT allowed the appeal in part.

On the employment status point, the EAT held that the Tribunal had erred in law. The written secondment documentation clearly provided that the claimant remained employed by BMCE. There had been no express or implied novation of her contract, which was required to transfer her employment. The fact that the UK CEO had assumed practical control over performance and disciplinary matters did not, without more, transfer the identity of the employer.

As a result, the finding that the UK entity had automatically unfairly dismissed the claimant could not stand. That claim was dismissed.

The EAT also highlighted the importance of identifying the correct legal employer in whistleblowing claims. Because the claimant remained employed by the parent company, liability for detriment against the UK entity could not simply be assumed. Where the alleged wrongdoer is not the direct employer, a Tribunal must carefully analyse whether the respondent falls within the extended statutory definition (for example, in a worker-supply situation) or whether the individuals concerned were acting as agents of the true employer. The EAT also reiterated that liability cannot be constructed by combining the act of one person with the motive of another; the person who subjects the worker to the detriment must themselves be motivated by the protected disclosure.

The whistleblowing detriment claim was therefore set aside and remitted to a freshly constituted Tribunal for reconsideration.

The EAT also determined that the tribunal had made a procedural error by speculating about the contents of an email which had been redacted for legal privilege. The EAT considered that the tribunal should have first determined whether the email was admissible before considering it, and that it was wrong to speculate on the contents rather than reviewing the unredacted version.

Learning points for employers

The decision underlines that clear secondment documentation will usually be decisive in identifying the employer, even where day-to-day control sits with the host organisation. A change in practical management responsibility does not, of itself, transfer an employment contract.

For group structures using secondees, the case also illustrates the importance of clarity about who has authority to take disciplinary or termination decisions, and how whistleblowing concerns are handled across group entities.

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For support or advice, please contact Khadija Khatun in our Employment team.