In Fitton v City of Edinburgh the claimant who had worked for the respondent from 1972 was, in 2003, seconded to another organisation, ELLP.
After a short time it was agreed that 'the secondment should continue on an open-ended basis'. The respondent gave an undertaking to find her a comparable post should there cease to be a need for her services. The respondent continued to provide funding to ELLP which included provision for her salary. ELLP used this to pay her salary but also gave her a pay rise from their own resources.
In 2005, ELLP was dissolved. The tribunal, with whom the EAT agreed, decided that the employee could not bring an unfair dismissal claim against the respondents. They had not been her employers since 2003. In deciding an employee's status, a tribunal will look at the documentation but it will also look at the facts eg who actually had day-to-day control over the employee's activities. In this case, the employee had become ‘permanently seconded’ and her employer was ELLP.
Point to note –
- A true secondment is a temporary assignment. Just as with agency workers, if an employee on secondment remains on one project for too long their employment status may change. Employers, and their customers, should be alive to this possibility. The legal responsibilities attached to being an employer may switch from supplier to customer.