The Claimant was employed by the first Respondent’s parent company, BMCE Bank of Africa (“BMCE”) from March 2013. In September 2016, she was seconded by BMCE to work for the first Respondent in London in the role of Head of Human Resources. The secondment arrangement was regulated by a Secondment Agreement and Secondment Letter, both of which stated that the Claimant remained an employee of BMCE during the secondment. The secondment was brought to an end in 2021, and the Claimant returned to a position with BMCE. She brought complaints against the first Respondent and two of its employees of sex discrimination, race discrimination, harassment, victimisation, whistleblowing detriment, ordinary unfair dismissal and automatically unfair dismissal for the reason of whistleblowing. The ET found that the Claimant’s employment had transferred to the first respondent on 8 January 2021 and that she had thereafter been subjected to various detriments by the Respondents. The Respondents appealed against those conclusions on a number of grounds.

The EAT allowed the appeal. The conclusion that the contract of employment had transferred was wrong in law. On the facts found by the ET, the only possible conclusion was that the contract remained with BMCE. Accordingly, the complaint of automatically unfair dismissal against the first Respondent should have been dismissed. The ET had also erred in its conclusions about key aspects of the whistleblowing detriment claims. The part of its judgment that found the whistleblowing detriment complaint would also be set aside, and that aspect of the claim would be remitted to a differently constituted ET to determine of new.