In recent years, the Employment Tribunal has been dominated by cases seeking to clarify the employment status of thousands of individuals who are looking for greater rights and protection within their workplace.
Last week (Wednesday 16 January 2019), a ‘landmark decision’ was made in the Manchester Employment Tribunal, where former Great Britain cyclist, Jess Varnish, was held not be an employee or worker of British Cycling or UK Sport.
Who are UK Sport and British Cycling?
UK Sport is a government body that primarily provides funding to British Olympic and Paralympic athletes. The funding is provided in two ways:
- to national governing bodies who run programmes that allow athletes access to elite level facilities and coaching; and
- directly to the athlete, which contributes to their living and other associated costs.
British Cycling is the main national governing body for competitive cycling in Great Britain.
Ms Varnish was seeking to bring a claim against British Cycling and UK Sport for unfair dismissal, sex discrimination and detriment suffered for being a whistleblower. However, in order for her to do so, she had to first prove that she was either an employee or worker of either body.
She began proceedings against both bodies after claiming that she was dropped from the British Cycling squad, and for funding, for the 2016 Rio Olympics in retaliation for speaking out against some of her coaches. In particular, Ms Varnish claimed that former British Cycling technical director, Shane Sutton, had told her ‘to go and have a baby’ when she was dropped by British Cycling. A subsequent UK Sport independent investigation into bullying claims at British Cycling cleared Mr Sutton, who had already resigned, for that specific remark, but found him to have used sexist language against Ms Varnish.
Ms Varnish claimed that she was an employee of British Cycling and UK Sport because of the ‘net of control’ that British Cycling had over her. She alleged that it punished her for minor transgressions, told her what to eat, wear and say in public. She said that she was obliged to complete media appearances and volunteer days and was told what to say at the events. She added that British Cycling owned her blood samples and claimed that she missed out on lucrative sponsorship deals because they were vetoed by British Cycling.
British Cycling and UK Sport argued that funding for athletes is more akin to university grants and therefore should not be subject to employment rights. UK Sport added that there was no mutuality of obligation between it and Ms Varnish. She was the recipient of a grant, not remuneration, to allow her to train and prepare as best she could for Olympic and World Championship events, ‘i.e. to succeed on her own account’.
Employment Judge Ross agreed with British Cycling and UK Sport and ruled that Ms Varnish was neither an employee nor a worker of either organisation. It means that Ms Varnish will not be able to pursue her claims against them unless she successfully appeals the decision.
Regardless of whether Ms Varnish decides to appeal this ruling, it appears that there have been significant benefits to other athletes as a result of these proceedings.
Had Ms Varnish succeeded in proving that she was either an employee or worker of either body, it could have had significant financial implications to UK Sport. Currently, more than 1,000 athletes receive UK Sport funding; if Ms Varnish had been successful, those athletes would have potentially benefitted from employment rights e.g. holiday pay, sick pay and a pension. As a consequence, UK Sport acknowledged that it would have had to cut its funding to cover the increased costs.
UK Sport also said that it has taken on board some of the issues that Ms Varnish has raised in her case, in particular, improving the duty of care and welfare provided to athletes and ensuring that avenues for raising concerns are effective and appropriate.
Whilst Ms Varnish may not have succeeded in proving that she was an employee or worker of British Cycling or UK Sport, she has provided another reminder that governing bodies ought to be extremely careful about the level of control that they exert over their members, as it could prove to be extremely expensive if they are unable to rebut the argument that a member is an employee as opposed to simply a beneficiary of funding.