Whistleblowing Protection and Secondments: Lessons from Bank of Africa v Hassani [2026] EAT 27

The recent decision of Bank of Africa and others v Hassani [2026] EAT 27 looks at whistleblowing protection in the context of secondments. 

Background

In the case, the Claimant was employed by BMCE (the parent company of Bank of Africa) and seconded to the Bank of Africa in London. The secondment agreement stated that the Claimant remained an employee of BMCE during the secondment and that at the end of her secondment, she would return to her position, or a similar one, at BMCE. 

When the Claimant’s expatriation contract with Bank of Africa was terminated, she returned to her role at BMCE.

The Claimant brought multiple complaints against the Bank of Africa and two of its employees, including for whistleblowing detriment and automatically unfair dismissal by reason of whistleblowing (the unfair dismissal claim under s.103A ERA 1996).

The Employment Tribunal concluded that the Claimant’s employment had effectively transferred to the Bank of Africa and that the Claimant had thereafter been subject to various detriments by the respondents. Bank of Africa appealed.

The EAT’s Decision

The Employment Appeal Tribunal held that the Tribunal had erred in law in concluding that the contract of employment had transferred from BMCE to Bank of Africa. The Tribunal’s reason focused entirely on a senior director of BMCE having “effectively rescinded its control over the Claimant” and upon Bank of Africa having assumed control over her. 

The EAT clarified the relevant points of law:

• If the Tribunal had in mind some form of replacement of the employment contract, that would have required the consent of all three parties, including the employee: at [31].
• As a matter of contract law, the rights and obligations under contract of employment may not be transferred by only one party to the agreement: at [36].
• The Tribunal had misapplied Dynasystems for Trade and General Consulting Limited v. Moseley UKEAT/0091/17/BA. In Dynasystems, Langstaff J accepted the potential significance of “a seamless stream of events – all of which are consistent one with the other,” which could be good evidence of what was initially agreed regarding transfer of employment. However, he did so only on the basis that such a pattern of behaviour could evidence what the parties had agreed to at the start of the relationship. The EAT said that Dynasystems is not authority for a wider proposition that a written employment contract which is found to reflect the reality of the parties’ intentions may be changed at a later date without reference to, or the agreement of, one of those parties: at [39]. 

As there had been no transfer of contract of employment from BMCE to Bank of Africa,  BMCE remained the Claimant’s employer, Accordingly, the complaint of automatically unfair dismissal against Bank of Africa should have been dismissed. 

Further, the EAT held that three of the five detriments found by the Tribunal to have been established related to steps taken by the CEO of Bank of Africa to terminate the Claimant’s employment. Each of those detriments – for example, the CEO of Bank of Africa’s attempt to dismiss the Claimant or his decision to place the Claimant on garden leave – which the Tribunal found to be established was also predicated upon the same erroneous hypothesis that Bank of Africa was the Claimant’s employer at the relevant time. 

Key takeaways

• A secondment is not necessarily a transfer of employment. A transfer of employment would require transfer of control as well as the consent of all three parties.
• Always draft secondment agreements with litigation in mind. For example, confirm that no transfer of employment is intended, express preservation of continuity of employment, define management and reporting lines, and clarify who has dismissal authority. 
• Detriments under whistleblowing law can only be brought against the legal employer where the detriments relate to automatic unfair dismissal. Though consider the wide definition of “worker” in s.43K of Employment Right Act for the purposes of other forms of unlawful detriments under Employment Right Act. This may include the firm/company to whom the person is seconded in many case.