Bank of Africa UK v Hassani: Employment status and whistleblowing detriments on secondment

The Employment Appeal Tribunal has overturned a tribunal's finding that an employee's contract transferred from her original employer to the company where she was seconded, highlighting the strict legal requirements for establishing employer status in whistleblowing cases.

Ms Tahri Hassani was employed by BMCE Bank of Africa from March 2013 and seconded to its UK subsidiary, Bank of Africa United Kingdom PLC, in September 2016 as Head of Human Resources. Both the Secondment Agreement and accompanying letter explicitly stated she remained a BMCE employee throughout the arrangement.

Between 2018 and 2020, Ms Hassani raised concerns about regulatory compliance and governance issues within the UK subsidiary. The employment tribunal found she made seven protected disclosures and suffered five detriments as a result, including attempts to dismiss her in January 2020 and April 2021. Crucially, the tribunal concluded her employment had transferred to the UK subsidiary on 8 January 2021, making it liable for automatically unfair dismissal under section 103A of the Employment Rights Act 1996.

The EAT disagreed fundamentally with this analysis. Lord Fairley held that the tribunal's conclusion rested on the legally flawed premise that employer status could change without the employee's involvement. The tribunal had found that BMCE "effectively rescinded its control" over Ms Hassani and that the UK subsidiary's CEO "stepped into the shoes of the employer" through his actions and BMCE's inertia.

This reasoning ignored the basic contractual principle that novation of an employment contract requires consent from all three parties: the employee, the original employer, and the proposed new employer. No evidence suggested any party had contemplated an express novation. The subjective intentions of BMCE and the UK subsidiary were insufficient to effect a legal transfer of employment.

The EAT also found the tribunal had misapplied authority from Dynasystems, which addressed evidential patterns at the inception of employment relationships, not subsequent contractual changes. Further, the tribunal's conclusion that BMCE had entirely relinquished responsibility contradicted its own findings that BMCE's representative continued managing aspects of the secondment after January 2021.

Regarding the whistleblowing detriment claims, the EAT identified multiple errors requiring a complete rehearing before a fresh tribunal. The tribunal had failed to properly address which respondent was liable under section 47B ERA and on what basis. With the "transferred employment" hypothesis eliminated, potential liability could only arise if the UK subsidiary met the extended definition of "employer" under section 43K ERA or if individuals acted as BMCE's agents with authority—complex factual questions never explored below.

The tribunal had also made a procedural error regarding alleged disclosure 13, finding facts about redacted portions of an email without ruling on the privilege objection raised or examining an unredacted version.

The automatically unfair dismissal claim against the UK subsidiary was dismissed, as only BMCE remained Ms Hassani's employer throughout. The whistleblowing detriment claims were remitted to a differently constituted tribunal to determine employer status, individual liability for each detriment, and causation afresh.

This decision reinforces that secondment arrangements, however long-standing or operationally integrated, cannot inadvertently create employment relationships. Clear contractual documentation will generally prevail absent formal novation involving all parties. The judgement also highlights the importance of precisely identifying which entity or individual bears responsibility for alleged detriments in complex employment structures.

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