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Athlete’s Landmark Employment Claim Fails
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Jess Varnish, a talented professional cyclist, entered into an ‘Athlete Agreement’ with British Cycling, which, in turn, was funded by UK Sport, in order to train and develop her abilities in the hope of being selected for the British Cycling Team. For performance reasons, the Agreement was terminated prior to the 2016 Olympic Games. As a result of the termination, Varnish brought claims of unfair dismissal, direct sex discrimination, victimisation and unlawful detriment for having made protected disclosures.
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The main issues the Tribunal identified were:
- Was the Claimant an employee or worker for British Cycling?
- Was the Claimant an employee or worker for UK Sport?
If regarded as an “employee” or “worker”, athletes would be entitled to the certain protections under employment legislation.
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- Section 230 states that an “employee” is an individual who has entered into a contract of employment or contract of service.
- Case law sets out that a ‘contract of service’ is one where the individual agrees to work for a wage, in exchange for the performance of services.
- Section 230 defines a “worker” as an individual who has entered into a contract whereby the individual undertakes to personally perform any work or services for another party to the contract.
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- Section 83 states “Employment” means employment under a contract of employment or a contract personally to work.
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British Cycling
Despite noting that British Cycling exercised a level of control over Varnish (such as providing a uniform and enforcing its own internal policies), the Tribunal held that Varnish did not personally perform work for British Cycling, nor was this in exchange for a wage, as British Cycling did not pay her. The purpose of the Agreement was to assist Varnish with her development and training to give her the best possible chance to compete for medals. There was no obligation that an award be made to Varnish.
The Tribunal found the relationship between Varnish and British Cycling to be very similar to the relationship between a University student, where their education includes teaching and other services such as grants.
Accordingly, the Tribunal held Varnish not to be either an “employee” or “worker” of British Cycling.
UK Sport
The Tribunal found Varnish was funded by the Athlete Performance Award; a non-repayable and tax free grant. The relationship between UK Sport and Varnish was merely a financial arrangement. The Funding contributed to her living expenses as an elite athlete.
Varnish did not meet the requirements to be either an “employee” or “worker” of UK Sport.
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Given Varnish was not an “employee” or “worker” for either Respondent, the Tribunal held it was unable to hear the claims relating to unfair dismissal, direct sex discrimination, victimisations and lawful detriment for having made protected disclosures.
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For further information on the Employment Rights Act and the Equality Act, contact Hatchers Solicitors’ Employment Law Team on 01743 248545.
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