Key takeaways
Secondment does not change employer status
Clear secondment documentation usually decisive in identifying employer.
Tribunal wrongly assumed secondee’s employment transferred to the host
Transfer of a secondee’s employment requires express agreement.
Clarity about disciplinary and whistleblowing concerns is desirable
Parties should be clear about who will handle these concerns.
Does an employee on a secondment become an employee of the host company for the purposes of securing protection as a whistleblower? The EAT recently considered this question.
The claimant, H, was employed by BMCE Bank of Africa (BMCE) from March 2013. In September 2016, H was seconded by BMCE to work for its UK subsidiary, the Bank of Africa United Kingdom Plc (BOA). The terms of the secondment were set out in a secondment agreement and secondment letter – both of which stated that H remained BMCE’s employee during her secondment with the BOA. H raised various compliance risks at the BOA in 2019 and thereafter relations between H and the BOA’s CEO began to sour. H returned to a position with BMCE after her BOA secondment ended in 2021. H subsequently brought multiple complaints against BOA and two of its employees, including for whistleblowing detriment and automatically unfair dismissal by reason of whistleblowing. The employment tribunal hearing those claims concluded that H’s employment had effectively transferred to BOA and that H had thereafter been subject to various whistleblowing-related detriments.
On appeal, the EAT held that the tribunal had erred when it had concluded that H’s contract of employment had transferred to the BOA. The tribunal had wrongly concluded that BCME had rescinded its control over H, relinquishing control of all decisions relating to H’s performance and the termination of her contract to the BOA’s CEO, meaning that the BOA had effectively 'stepped into the shoes of the employer'. The tribunal had seemingly concluded that a combination of the actions of the BOA’s CEO, and BMCE’s inertia, had led to H becoming the BOA’s employee by default. However, there were no factual findings which suggested the parties had ever applied their minds to an express novation of H’s employment contract to the BOA. The tribunal’s premise that the identity of an employer can be changed without reference to the employee was legally wrong. Based on the tribunal’s factual findings, the only possible conclusion was that H remained an employee of BMCE, and therefore the EAT substituted a decision dismissing her complaint of automatically unfair dismissal against the BOA.
Bank of Africa United Kingdom Plc and ors -v- Hassani [2026] EAT 27
