Jessica Varnish, a former professional track cyclist, has failed in her attempts to establish that she was an employee or a worker of British Cycling whilst training for the Rio Olympics, despite having a contractual right to access a suite of benefits with an estimated value of £600,000-£700,000 over a 4-year period.
Ms Varnish raised claims for unfair dismissal and discrimination against the British Cycling Federation (trading as British Cycling) after being dropped from their Podium Programme, for performance-related reasons, a few months prior to the Rio Olympics in 2016. She claimed that her former coach had told her "to go and have a baby".
British Cycling disputed her employment status and in December 2018 the Employment Tribunal decided that Ms Varnish was neither an employee nor a worker. She appealed the decision to the Employment Appeal Tribunal (the 'EAT').
The EAT, in its first fully remote hearing conducted with lay members, upheld the Tribunal's decision and dismissed Ms Varnish's appeal.
In 2006 Ms Varnish was selected for British Cycling's Olympic Podium Programme. She entered into a series of contracts with British Cycling which governed the relationship between the parties, the latest having been entered into in November 2015 (the 'Agreement').
The Agreement expressly stated that it was not a contract of employment and that participation in the Podium Programme did not create an employment relationship.
Both parties had responsibilities under the Agreement, Ms Varnish's included amongst others:
- training with the British Team;
- entering identified competitions;
- wearing team clothing;
- following all reasonable directions of British Cycling; and
- not engaging in any personal commercial work or media appearances without written consent.
In return, British Cycling provided access to coaching, equipment, facilities, medical services and paid for travel and accommodation expenses.
Employment Tribunal decision
When Ms Varnish raised employment tribunal proceedings, British Cycling challenged the Tribunal's jurisdiction on grounds that Ms Varnish was neither an employee nor a worker.
Was Ms Varnish an employee?
When considering employment status, the Employment Tribunal identified that the irreducible minimum for a contract of employment comprised elements of mutuality of obligation, control and personal performance.
The Tribunal were of the view that:
- there was no mutuality of obligation between the parties. There was no work / wage bargain. Ms Varnish did not receive any money from British Cycling. Instead, she was eligible to apply for non-repayable, means tested, grant from a third party, UK Sport.
- the services and benefits provided did not amount to remuneration. There was no obligation on Ms Varnish to accept the services offered and despite the significant monetary value of the services, HMRC did not regard the benefits as taxable.
- although a high degree of control was exercised over Ms Varnish, which pointed to an employment relationship, it was necessary to "step back and look at the whole picture".
- Mr Varnish was not personally performing work provided by British Cycling. She was committed to training in the hope of achieving success at international competitions.
Ultimately, the Tribunal decided that the facts were: "wholly inconsistent with a contract of employment".
Did she have worker status?
The Tribunal then turned its attention to whether Ms Varnish was a worker.
The Tribunal concluded that Ms Varnish was an athlete in training. The Agreement was a contract where services were provided to Ms Varnish, not the other way around. The Tribunal held that, again, looking at the whole picture, the relationship between the parties was not consistent with worker status.
Ms Varnish appealed the Tribunal's decision on grounds that the Tribunal had erred in law in finding that there was no “mutuality of obligation” and in concluding that she was not a worker, and that the Tribunal’s reasoning was irrational in relation to certain findings of fact.
The EAT carefully considered the reasoning of the Tribunal and concluded that the Tribunal was entitled to reach the decision it had, and no error of law had occurred.
This case is one of many challenges made in relation to employment status in recent years. Although it makes clear that Ms Varnish was not an employee or worker, such cases are very fact specific. Indeed, the EAT specifically stated that had the contractual provisions, and the balance between services provided to and performed by an athlete, been different, the training done by an athlete could amount to work.
It's important to take advice if challenges to employment status are raised as not only could this result in significant awards being made at tribunal, but it may impact upon the status of many others in the organisation, engaged on a similar basis.
For more information in relation to employment status, or any points raised in this article, please get in touch with your usual Brodies contact.
Workbox by Brodies users can find detailed information on our dedicated Employment Status pages.