In a recent case called Bank of Africa and Others v Hassani, the Claimant was employed by BCME and seconded to the Bank of Africa. The secondment agreement stated her employment remained with BCME. After the secondment ended, she brought claims for automatic unfair dismissal for whistleblowing against the Bank and whistleblowing detriment against the Bank and two employees.
The Employment Tribunal held that her employment had transferred to the Bank of Africa, that she had been dismissed for whistleblowing, and that all Respondents had subjected her to detriments.
The Employment Appeal Tribunal (EAT) disagreed, holding:
- The Claimant had never become an employee of the Bank. The secondment was clear and there was no transfer or novation of contract. The Bank therefore could not be liable for unfair dismissal.
- This error undermined the detriment findings under Section 47B Employment Rights Act 1996. If the Claimant was not the Bank’s employee or worker, the Bank could only be liable for detriment if it fell within the extended definition of “employer” under section 43K ERA, or if the individuals acted as agents of BCME with its authority. These issues had not been properly considered.
- The original Employment Tribunal also wrongly treated all Respondents as jointly responsible for all detriments, despite differing knowledge. A ‘composite approach’ – mixing one person’s actions with another’s motive – is not permitted under section 47B
- The EAT remitted a narrowed version of the detriment claims to a new tribunal.