Bank of Africa United Kingdom Plc & Ors v N Tahri Hassani

An employment contract cannot be transferred from one employer to another at common law merely because the original employer relinquishes practical control and the host organisation assumes employment functions. In the absence of an operation of law, an express or implied novation requires the consent of the employee, the original employer and the proposed new employer.

Where an Employment Tribunal's finding that the respondent was the employer is erroneous, a Employment Rights Act 1996 section 103A claim against that respondent must fail. Whistleblowing detriment liability under section 47B must instead be determined by the applicable statutory route and by each respondent's own acts and reasons. A composite approach combining one person's act with another's motive is impermissible.

The claimant was employed by BMCE Bank of Africa and seconded to its UK subsidiary as Head of Human Resources. The secondment documents expressly preserved her BMCE employment. After raising regulatory and governance concerns, she alleged whistleblowing detriments and automatically unfair dismissal.

The London Central Employment Tribunal held that her employment transferred to the first respondent on 8 January 2021, upheld parts of her section 47B detriment claim, and upheld her section 103A dismissal claim. The respondents appealed. The central issues were whether her employment contract had transferred, whether a disclosure based partly on redacted material could be treated as protected, and the proper basis for section 47B liability.

1. Appeal allowed in part. The Tribunal's declaration that the claimant became an employee of the first respondent on 8 January 2021 was set aside. Its findings established that the secondment documents continued to govern the relationship; they did not establish a transfer of the employment contract.

2. At common law, one contracting party cannot transfer the rights and obligations of an employment contract to another. Apart from a transfer by operation of law, a change of employer requires an express or implied novation, with the consent of the employee, the existing employer and the proposed employer. BMCE's alleged relinquishment of control and the first respondent's assumption of practical employment functions could not, without the claimant's consent, effect that result. Dynasystems did not support a wider rule: a seamless course of conduct may evidence the parties' original agreement, but does not permit a written employment contract to be altered later without reference to a contracting party.

3. The section 103A claim could only be brought against the claimant's employer. The only legally possible conclusion on the Tribunal's findings was that BMCE remained her employer throughout the secondment. The EAT therefore substituted dismissal of the section 103A complaint against the first respondent.

4. The Tribunal made a procedural error by treating the redacted part of the 31 December 2019 email as containing a regulatory reference without determining the first respondent's privilege objection or seeing an unredacted email. Its conclusion that disclosure 13 was protected was set aside.

5. The section 47B findings were also set aside and remitted to a differently constituted Tribunal. Once the erroneous transferred-employment premise was removed, the potential statutory basis for liability required determination, including section 43K and agency under section 47B(1A)(b). Liability had to be assessed separately for each respondent. It was impermissible to combine one employee's act with another's motive. Disclosures 3, 4, 8 and 10 to 12 were preserved as established. The new Tribunal was directed to determine admissibility and protection of disclosure 13, the alleged detriments, causation, and section 47B liability afresh.

• Employment Appeal Tribunal: allowed grounds 1 and 5, dismissed grounds 2, 3, 4, 6 and 7, set aside the relevant parts of the Employment Tribunal judgment, substituted dismissal of the section 103A claim, and remitted the section 47B claim to a differently constituted Tribunal: [2026] EAT 27.
• London Central Employment Tribunal: judgment dated 6 April 2023 held that the claimant became the first respondent's employee on 8 January 2021, upheld parts of the whistleblowing detriment claim and an automatically unfair dismissal claim under Employment Rights Act 1996 section 103A.