Bank of Africa UK PLC & Ors v Hassani

Employment Appeal Tribunal allows appeal in Bank of Africa UK PLC & Ors v Hassani

Background

Ms Hassani was employed by BMCE Bank of Africa from March 2013. In September 2016 she was seconded by BMCE to Bank of Africa UK PLC in London as Head of Human Resources under a Secondment Agreement and Secondment Letter which expressly provided that no employment relationship was created with the UK bank and that she remained a BMCE employee. Throughout the secondment she reported operationally to the UK CEO but remained subject to BMCE’s instructions and benefits, with an expectation of return to a BMCE role at the end of the assignment.

Between 2019 and the end of 2020 she raised a series of concerns about regulatory training, internal governance and FCA compliance, including emails in April, September and December 2019 and requests for urgent board discussions about the COO’s position. The tribunal found that the UK CEO, Mr Barakat, attempted to dismiss her in January 2020 because of these compliance concerns, but was blocked by Mr Agoumi, a BMCE director and chair of the UK bank’s remuneration committee. The relationship deteriorated, culminating in a confrontation on 6 January 2021 and an email from the claimant on 8 January alleging harassment and stating she could no longer hold one‑to‑one meetings with Mr Barakat.

The tribunal found that by early January 2021 BMCE had “rescinded its control” over the claimant and that the UK bank had “stepped into the shoes of the employer”, so that she became an employee of Bank of Africa UK PLC on 8 January 2021. It upheld seven protected disclosures, five detriments and a claim of automatic unfair dismissal for whistleblowing under section 103A of the Employment Rights Act 1996.

Judgment

The EAT held that the tribunal’s conclusion that the claimant’s employment transferred to the UK bank on 8 January 2021 was wrong in law. As a matter of contract, any change in employer identity would have required novation of the BMCE employment contract, with the consent of BMCE, the claimant and Bank of Africa UK PLC; there was no finding that anyone addressed or agreed such a novation. The tribunal’s reasoning that BMCE had “rescinded” or “relinquished” control so that the UK bank could “step into the shoes of the employer” was unsupported by authority and based on the erroneous premise that an employer’s identity can be changed without reference to the employee.

The EAT emphasised that termination of a secondment is distinct from termination of the underlying employment contract and does not, by itself, found an automatic unfair dismissal claim under section 103A. The tribunal’s own findings showed BMCE, via Mr Agoumi, continued to engage with decisions about the claimant’s position in 2021, which was inconsistent with any wholesale relinquishment of responsibility. On that basis, the automatic unfair dismissal claim against the UK bank should have been dismissed.

On the whistleblowing detriment claims, the EAT held that the tribunal’s legal errors on the employer identity issue and aspects of causation infected key findings and could not simply be corrected on appeal. While it rejected a broad perversity challenge to the tribunal’s causation analysis, it noted that its disposal of the successful grounds made it unnecessary to decide some causation points in detail. The EAT therefore set aside the whistleblowing detriment findings and remitted that part of the claim to a differently constituted tribunal for rehearing.

Endnote

The decision underlines that control on the ground, even where a secondee is fully integrated into a host’s operations, does not of itself transfer employer status; absent TUPE, a change in employer requires a contractual novation with tripartite consent. For employers using long‑term secondments, it is a reminder to keep contractual structures aligned with operational practice and to distinguish clearly between managing performance in the host entity and terminating the underlying employment.