Matthew Astley and Olivia Bailey, from Harrison Drury’s sports sector team, consider the case of Varnish v British Cycling, in light of the recent decision of the Employment Appeal Tribunal.
In July 2020, the Employment Appeal Tribunal (EAT) dismissed an appeal by Jess Varnish against the original finding by an Employment Tribunal that she was not an employee or a worker.
Ms Varnish is a well-known professional cyclist and Olympian. In 2006 she was selected to join British Cycling’s World Class Programme. Over the course of the next decade, she entered into a number of agreements with British Cycling, which regulated the relationship between the parties.
In 2016, Ms Varnish was part of the Olympic Podium Programme, hoping to attend the Rio Olympics. Pursuant to the most recent athlete agreement, British Cycling agreed to develop a performance plan and to provide a package of services, benefits and other support, including coaching and sports science support, medical services and access to facilities.
However, following her failure to qualify for the team sprint in Rio, Ms Varnish was dropped from the Programme and Ms Varnish’s relationship with British Cycling was terminated, for performance-related reasons, with effect from 31 March 2016. Ms Varnish brought claims against British Cycling (and UK Sport) in the Employment Tribunal, including for unfair dismissal and sex discrimination.
The right to bring a claim for unfair dismissal is available only to employees, whereas the right to bring discrimination claims also extends to workers (and, in certain circumstances, a wider category of individuals who are self-employed). Employee and worker status was disputed and the case was listed for a hearing before the Employment Tribunal to determine whether Ms Varnish was an employee or worker of British Cycling (or UK Sport) and, therefore, entitled to bring her claims.
The athlete agreement between British Cycling and Ms Varnish, which expressly stated that it was not a contract of employment, recognised ‘the ultimate goal’ of everyone involved in the Podium Programme, was to win medals for the British Team.
The Employment Tribunal concluded that:
- Ms Varnish did not work in exchange for a wage – in other words, that there was no ‘wage/work bargain’ or ‘mutuality of obligation’, which is necessary to establish employee status; and
- Whilst control of Ms Varnish by British Cycling was a ‘significant feature’ of the relationship, she was not personally performing work provided by British Cycling, but instead was personally performing a commitment to train in the hope she would be selected to compete and that she would achieve success in international competitions.
Ms Varnish appealed the decision of the Employment Tribunal on a number of grounds, including that it had made an ‘error of law’ in concluding that there was no mutuality of obligation.
The remit of the EAT in such cases is relatively narrow. To succeed, Ms Varnish had to successfully argue that there was some misdirection of law or that the conclusion reached was one that no reasonable tribunal, properly directed, would reach.
Ultimately, the EAT concluded that the Employment Tribunal was entitled to reach the decision it did, which did not disclose any error of law. In so concluding, the EAT stated that: “Not all work will be of the kind that gives rise to an employment relationship; the hard-working student at university is a possible example of that.”.
The EAT emphasised that the conclusion of the Employment Tribunal does not mean that in another case, where perhaps the contractual provisions and the nature of the relationship are different, the training done by a cyclist could not be found to amount to work.
However, for now, and subject to any potential further appeal by Ms Varnish, British Cycling and other national governing bodies are likely to breathe a sigh of relief.
Harrison Drury’s sports sector team can assist athletes and national governing bodies with employment-related matters. For more information please contact Matthew Astley or Olivia Bailey on 01772 258321.