Can a seconded employee become an employee of the business he or she is seconded to?

Although each case will turn on its own facts, the Employment Appeal Tribunal decision in the case of Bank of Africa UK plc & Ors v Hassani [2026] EAT 27 (1) gives some guidance on whether a seconded employee could become an employee of the business they are seconded to.

In the above case, Hassani (H) worked for BMCE Bank of Africa (“BMCE”), which had a subsidiary operation within the UK under the name of Bank of Africa UK plc. In 2016, (H) was seconded to Bank of Africa UK plc as Head of HR, with written terms of secondment making it quite clear that (H) was seconded and that (H) remained employed by BMCE and would return to them at the end of the secondment.

Following (H) raising regulatory and governance concerns whilst being seconded to Bank of Africa UK plc, (H)’s secondment ended in 2021, and she returned to BMCE. (H) then made Employment Tribunal (ET) claims against BMCE and two senior individuals for whistleblowing detriment and automatic unfair dismissal. The (ET) decided that (H)’s employment had transferred to the UK entity during her secondment and upheld her claims. Bank of Africa UK plc (and the two senior individuals) appealed to the Employment Appeal Tribunal (EAT) against the decision made by the (ET).

The EAT allowed the appeal, as they considered that the (ET) had erred in law in concluding that (H)’s contract of employment had transferred to Bank of Africa UK plc. Thus, her employment remained with BMCE and, therefore, the automatic unfair dismissal claim against Bank of Africa UK plc could not succeed. The EAT also set aside parts of the whistleblowing detriment findings due to legal errors and remitted those issues to a differently constituted tribunal.

There is a principle of law called “novation”, where a contract could transfer to a third party, here Bank of Africa UK plc. However, what the EAT emphasised was that it would have required the consent of all three parties, with the transfer of control moving from BMCE to Bank of Africa UK plc. In this case, based upon the facts, the rights and obligations under the contract of employment were not transferred.

To ensure secondments remain in line with the above decision, it is prudent for an employer seconding their employee to another third party to have written terms in place making clear that no transfer of employment is intended. Thus, continuity of employment would remain with the current employer, and the employee will revert to the role they are employed to do. Therefore, the end of the secondment does not necessarily mean it is a redundancy situation. It is also important to clearly define management and reporting lines over the secondment period so that the employee is clear that the current employer will deal with any formal matters such as misconduct and grievance matters, and to obtain the employee’s written agreement to the secondment terms.

If you require any further assistance, please do not hesitate to contact our HR/Legal Advice Line team at 01455 852 028.