Mr P Dumitru and Others v Siemens Energy Ltd and Others: 2302246/2025
EMPLOYMENT TRIBUNALS
Case No 2302246/2025
Between
(1) Mr Paul Dumitru (2) Mr Costel Busuioc (3) Mr Adrian Gal (4) Mr Daniel DascaluClaimantSiemens Energy Ltd and OthersRespondent
Before
Employment Judge Eoin FowellDate 1 July 2026
JUDGMENT
The claims are dismissed, on the basis that none of the claimants was an employee and so they cannot bring a complaint of unfair dismissal.
REASONS
[1]These written reasons are provided at the request of the claimants following oral reasons given earlier today. As usual some editing has taken place for the sake of clarity, and here and there some points are expanded (with the addition of 1 of 6 reference to a legal case), so these written reasons shall stand as the final version.
Background
[1]Essentially Mr Dumitru and the other claimants worked for a number of weeks in January and February 2025 as labourers on a large project on the Isle of Grain. The second respondent, NeuConnect, is in the energy supply business and the project involves a subsea cable across the channel to share energy between the UK and Germany. Siemens, the first respondent, won the contract to construct the necessary infrastructure and they in turn contracted with Gallagher Group, the third respondent, to carry out the groundwork operation. Gallagher recruited some staff via an agency, CPR (the fourth respondent) and they in turn used a sub agency to fill some of those vacancies - Exchequer Contracts Ltd (ECS). Mr Dumitru and the other claimants all had contracts with ECS but there was nothing in writing between them and any of the respondents.[2]As noted in the previous case management order, following the hearing on 1 April 2026: “37. The claim is about the termination of the claimant’s engagement in relation to the work. [Gallagher] admits that they told the claimant and one of his colleagues that he was not needed, but the other two left of their own volition. It is [Gallagher]’s position that [Siemen]’s needs fluctuate and that two of the claimants simply were not required. Mr Dumitru says he and one of his colleagues were “let go” because he raised health and safety concerns about the toilets and water, and that the other two claimants left because they saw how badly Mr Dumitru was treated.”[3]That order went on to make clear that the only substantive claim being brought is one of unfair dismissal and therefore that the ultimate question for the tribunal (in accordance with s.103A Employment Rights Act 1996) is whether the reason, or principal reason for the dismissal was that the claimant made a protected disclosure. But first it is necessary to ensure that he has the employment status necessary to bring such a claim, and this hearing was listed to resolve that aspect.[4]Unfortunately that order went further than necessary. The questions posed for the tribunal at this hearing covered both whether Mr Dumitru was an employee of one of the respondents and also whether he was a worker. Consequently much of the evidence assembled for this hearing related to worker status. Mr Dumitru accepted at the outset that he was not an employee. His understanding was that he could succeed in his claim if he could establish that he was a worker. Unfortunately, particularly in view of the time and effort expended in preparing for 2 of 6 this hearing, that is not correct. It is a misunderstanding which appears to have extended to the respondents also. Mr Dumitru had clearly done legal research in this area, familiarised himself all of the Employment Rights Act 1996 and satisfied himself that worker status was enough, but for the reasons I shall explain it is not.[5]The position is in fact very well-established. The right to claim unfair dismissal is set out at Part X of the Act. That Part starts with section 94: “94 The right. (1) An employee has the right not to be unfairly dismissed by his employer.”[6]Section 103A also uses the same term: “103A Protected disclosure “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”[7]Part V of the Act deals with detriments. It sets out various protections for workers who suffer detriments at work, the main one being for whistleblowers. By section 47B: 47B Protected disclosures. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[8](It uses the term employer here on the second line in the everyday sense, meaning the person or organisation the individual is working for.)[9]It goes on: “(2) [This] section [protection from detriments] does not apply where—(a) the worker is an employee, and(b) the detriment in question amounts to dismissal (within the meaning of Part X).[10]Of course, an employee can also bring a detriment claim, as employees are also workers. This section does not prevent them claiming unfair dismissal. It just means that unfair dismissal is covered elsewhere, in section 103A. That is an illustration of the fundamental distinction between detriment claims under Part V and dismissal claims under Part X. 3 of 6[11]Section 47B continues: (3) for the purposes of this section …”worker”, “worker’s contract”, “employment” and “employer” have the extended meaning given by section 43K[12]Section 43K is a long section and there is no need to set it out in full, but essentially it extends protection to those, like Mr Dumitru, who are engaged via an agency. It begins: 43K Extension of meaning of “worker” etc. for Part IVA. (1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who— (a) works or worked for a person in circumstances in which— (i) he is or was introduced or supplied to do that work by a third person, and …[13]The definition of an employer is also expanded, at sub-paragraph (2) to include the person (i.e. the agency) who decides on the terms under which the worker is engaged.[14]Overall therefore, the Act uses the term employer in different places with different meanings, depending on the context, but it maintains the distinction between employees (who can claim unfair dismissal) and workers (who cannot).[15]The definitions of employee and worker are found at section 230: 230 Employees, workers etc. (1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. … (3) In this Act “worker” … means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly. … 4 of 6[16]This is the section that establishes that all employees are workers, because the definition of worker has two limbs, and limb (a) includes those who have a contract of employment. Limb (b) is wider and includes, for example, anyone with a contract to do work personally, providing it is not for a client or customer of their business. (Those with clients and customers are self-employed.)[17]Mr Dumitru drew subsection (6) to my attention, which says (removing unnecessary words): (6) This section has effect subject to sections 43K, 47B(3) … “worker” , “worker's contract” and, in relation to a worker, “employer” , “employment” and “employed” have the extended meaning given by section 43K.[18]This is essentially a duplication of section 43K. It states that for the purposes of those sections, the term “worker” etc have the extended meaning and can include agency workers. It does not change the fundamental distinction between employees and workers.[19]As mentioned at the outset, I will refer to one legal case which endorses this view. The Supreme Court, in Uber BV & Ors v Aslam & Ors [2021] UKSC 5 held as follows “34. The rights claimed by the claimants in these proceedings are [various, and] … in the case of two claimants, one of whom is Mr Aslam, a right under the Employment Rights Act 1996 not to suffer detrimental treatment on the grounds of having made a protected disclosure (‘whistleblowing’). “35. All these rights are conferred by the legislation on ‘workers’. The term ‘worker’ is defined by section 230(3) of the Employment Rights Act 1996 [as above] … The effect of these definitions, as Baroness Hale of Richmond observed in Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32; [2014] 1 WLR 2047, paras 25 and 31, is that employment law distinguishes between three types of people: those employed under a contract of employment; those self-employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried on by someone else. Some statutory rights, such as the right not to be unfairly dismissed, are limited to those employed under a contract of employment; but other rights, including those claimed in these proceedings, apply to all ‘workers’. [Emphasis added] 5 of 6[20]It follows, since Mr Dumitru accepts that he was not an employee, that the claim of unfair dismissal cannot succeed. Nothing has been put forward to suggest that the other claimants were in a different position.[21]I did consider whether there might be a detriment claim included in the claim form There is a passing mention of detrimental treatment but no specifics. It appears to mean no more than his dismissal. In his witness statement Mr Dumitru refers to being told by the managers on site to keep his mouth shut but that is not mentioned in the claim form and nor was any detriment claim identified at the case management hearing. No application to amend the claim has been made and any such application would now be well out of time. Even if that were not the case the scope of such a claim would be extremely small; it would amount to a claim for injury to feelings for this remark. There is nothing to suggest that any of the other claimants suffered any detriment at all. As it is, unfair dismissal is the only complaint before the tribunal and, for the reasons already given, must be dismissed.