Mr John Rowe v TGE Gas Engineering Gmbh — 2022

This was a preliminary issue hearing before Employment Judge E Fowell in Bristol by video on 9 and 10 November 2022. The tribunal considered whether Mr John Rowe was employed for the purposes of his discrimination complaints and whether he was an employee for the purposes of his breach of contract complaint. It found that he had been disabled at the material times by reason of his prostate cancer, respiratory lung impairment, leg pain, diabetes and depression.

On the employment status issue, the tribunal found that Mr Rowe was not an employee for the purposes of the Employment Rights Act 1996, so the breach of contract complaint was dismissed. The tribunal accepted that there was a contract for services relating to the Flogas project, but held that the proposed Gateway arrangement did not form part of the operative contractual relationship. It relied instead on Mr Rowe’s own two-page proposal and on the reality of the working arrangements, including his full-time work on the project, his reporting line to the Construction Manager, and his integration into TGE’s site team.

By contrast, the tribunal held that Mr Rowe was an employee for the purposes of the Equality Act 2010. It treated him as working personally for TGE, not as a genuinely self-employed person providing services to a client or customer, and referred to the statutory definitions and authorities including Cotswold Developments, Autoclenz, Uber, Alemi and Sejpal. The tribunal noted the degree of direction and subordination, including evidence that Mr Das altered aspects of Mr Rowe’s inspection and testing plan.

On disability, the tribunal accepted that Mr Rowe’s conditions had a substantial and long-term adverse effect on normal day-to-day activities. It accepted the effect of the lung impairment, leg pain, depression and diabetes, and held that prostate cancer was a disability at the material time. It was not satisfied that the later mantle cell lymphoma diagnosis could be relied on for November 2021. The remaining age and disability discrimination claims were left to proceed to the final hearing listed for 13 March 2023, and no monetary remedy was determined in this judgment.