Rare win for employers in employment status case
Mike Tremeer and Christopher Wilkinson, February 05, 2019
The latest employment tribunal case involving Olympic athlete Jessica Varnish is perhaps the most high-profile example of an employment status dispute to date
Ms Varnish alleged that she was an employee (or at least a worker) of British Cycling or UK Sport when she was dropped from its elite programme in early 2016 – only a few months before the Olympic Games in Rio de Janeiro.
If correct this would mean that she would be able to pursue claims for unfair dismissal, sex discrimination and victimisation against the organisations relating to the termination of her engagement.
In 2006 Varnish, a talented 15-year-old cyclist, was selected for British Cycling’s World Class Programme – an overarching programme designed to achieve cycling success at international competitions. Over the following years she progressed to the Olympic Academy Programme and subsequently to the Olympic Podium Programme – reserved for elite world-class cyclists.
Between 2006 and 2016 Varnish entered into various Athlete Agreements with British Cycling, which governed the relationship between the parties. The tribunal found that she 'agreed to a high level of control under the Athlete Agreement' with the shared intention of seeking to win medals in international competitions.
However, Varnish was not paid by British Cycling. Instead she was able to apply for funding from UK Sport that could be provided under an Athlete Performance Award. UK Sport was in turn funded by the National Lottery. Varnish received funding of varying amounts under Athlete Performance Awards between 2007 and 2016.
Examples of the 'extreme control' relied on by Varnish as indicative of an employment relationship included:
- Coaches listening at bedroom doors to ensure that athletes were asleep
- Requiring Varnish to train over a Christmas period despite her request to spend time with family and friends
- An obligation that Varnish and other athletes wear Team GB kit when performing and training
- Detailed media obligations – including a requirement for Varnish to make up to three National Lottery appearances.
Given the number of cases in which individuals have been found to be workers or employees, many expected Varnish to be successful in this preliminary matter. However, in a judgement that bucked the recent trend the tribunal found that Varnish was not an employee, nor a worker, of British Cycling or UK Sport.
In summary, employment judge Ross found that British Cycling did exert a high level of control over Varnish. However, that was the only point that might support an employment relationship. By contrast UK Sport, which funded Varnish, exerted little to no control over her.
Further, it was found that there was no mutuality of obligation between Varnish and British Cycling or UK Sport; the relationship was more akin to that between a university and student where education including teaching, lecturing and other services are provided. UK Sport was seen as providing a grant in this respect.
Finally, it was found that Varnish did personally commit to British Cycling to train in accordance with her individual plan, but that this did not equate to personal service consistent with an employment relationship in the absence of other requisite factors.
The decision is a rare win for 'employers' in employment status disputes. It highlights the importance of taking a step back to view the whole picture. The indications that British Cycling exerted a large amount of control over Varnish were not enough to determine her employment status. Employers and HR teams around the country should take some solace in this fact – while recognising that the particular circumstances of this case are unlikely to be common among more traditional employment relationships.
The Good Work Plan detailed in December 2018 highlights that protecting vulnerable workers, including those who operate in the gig economy, remains front and centre of the government’s agenda. Employers that engage a large number of casual workers, self-employed contractors (who are not recognised as workers and so do not receive holiday pay etc) and any other more flexible working arrangements are advised to consider these arrangements now to assess any risk that may exist and any actions that are necessary to mitigate those risks.
Mike Tremeer is a partner in the corporate department and Christopher Wilkinson is a trainee solicitor at Fladgate