Legal Corner: Gold medal winning cyclist not an employee of British Cycling

28th Aug 2020
Legal Corner: Gold medal winning cyclist not an employee of British Cycling

The issue of whether someone is an employee, a worker, or is self-employed is one that has attracted a significant amount of attention recently, as the employment landscape shifts and evolves. Uber drivers, Deliveroo, Pimlico Plumbers, and more have been considered by the courts.

Recently, it was the turn of gold medal-winning cyclist Jessica Varnish. She sought to argue that she was an employee or worker of British Cycling, in order to challenge their decision not to offer her a new contract in 2016 — they argued that this was due to her performance, but she considered that it was an act of discrimination and that she had been ‘dismissed.’

The Employment Tribunal had to consider, as a preliminary issue, whether she was an employee or a worker, or not — as this was a prerequisite for pursuing her claims.

Ms Varnish had a contract with British Cycling to take part in their Olympic Podium Programme. They developed an individual performance plan and provided a package of services including coaching, clothing and equipment, medical services, travel and accommodation and access to facilities.

The value of this package ran into the hundreds of thousands of pounds. In return, Ms Varnish agreed to train with the British Team squad, attend training camps, enter competitions, and maintain the highest level of health and physical fitness in order to be able to succeed.

Ms Varnish did not receive any financial support from British Cycling, but the fact that she was part of the Olympic Podium Programme meant that she was able to apply to UK Sport for a means-tested grant.

The Employment Tribunal looked at whether Ms Varnish was employed by, or a worker of British Cycling, or both British Cycling and UK Sport under a tripartite agreement.

To be considered an employee, there needs to be what is known as ‘mutuality of obligation’ — that is, the obligation on the employer to provide work and the obligation on the employee to carry it out in exchange for remuneration (often referred to as the wage/work bargain), control of the employee by the employer, and personal performance by the individual (who cannot be substituted for someone else).

They decided that there was no employment relationship here because there was no wage/work bargain. Ms Varnish did not train and compete in exchange for a salary.

The agreement with British Cycling (which expressly said that it did not create an employment relationship) was a means to support Ms Varnish with a range of services by which she might have the best possible chance of being selected for the British Cycling Team to compete in competitive events.

She received no money from British Cycling, and the agreement with them did not provide for any money to be paid to her; moreover, there was no guarantee that she would receive a grant from UK Sport simply because she was on the Olympic Podium Programme.

Having considered a range of other factors, the Employment Tribunal concluded that Ms Varnish could not demonstrate that she was an employee of British Cycling.

They also found that she was not a worker, as she was not personally performing work for British Cycling. Instead, the Employment Tribunal found that she was training in accordance with the rider plan devised for her, in the hope that she would be selected to compete in international competitions.

Ms Varnish appealed to the Employment Appeal Tribunal — in particular, she argued that it was wrong to say that her efforts to train hard for the common purpose of achieving medal success was not ‘work’.

She also argued that the package of services provided to her should clearly have been construed as remuneration. However, the Employment Appeal Tribunal did not agree — and Ms Varnish was unsuccessful, a result which meant that she was unable to pursue her discrimination and dismissal claims.

This case is yet another reminder that what constitutes employment or who counts as a worker, is not always clear cut.

That status is important because it brings with it a whole host of legal protections, particularly around protection from unfair dismissal and discrimination. Yet the changing picture of what ‘work’ actually looks like, means that this is an area that is likely to continue to evolve.

Safia Tharoo
Barrister, 40 Bedford Row, London

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