17 September 2019 - Events
Last week the employment tribunal ruled that Jess Varnish was neither a worker nor an employee of UK Sport or British Cycling. This means that Varnish cannot pursue her claims of unfair dismissal, discrimination and whistleblowing in the employment tribunal, unless she is able to successfully appeal this decision.
Employment status claims have been in the limelight recently as a spate of so called ‘gig economy’ cases have made their way through the courts involving big players like Deliveroo and Uber. Establishing that an individual is either an employee or a worker is the first step to that individual being able to enforce rights against the employer, such as holiday pay, pensions, the national minimum wage and the right not to be unfairly dismissed or discriminated against. If an individual is found to be genuinely self-employed they will have no such rights. The assessment of employment status requires a range of factors to be taken into account, such as the obligation on the individual to undertake work (and on the employer to provide it), as well as other factors such as the level of control and any risk that may be borne by the individual.
The gig economy cases have largely focussed on whether an individual was required to work at any particular time and whether they could send a substitute to undertake the work instead. However, in Varnish’s case, the key issue was whether or not her training programme constituted ‘work’ at all. The tribunal found that it did not and that Varnish was not working for UK Sport or British Cycling but was pursuing an agreed training programme with a view to achieving success in international competition. This finding effectively meant that Varnish could not be either an employee or a worker, albeit there were some factors in the relationship between her and British Cycling that did point towards an employment style relationship.
Varnish is currently considering whether to appeal or not so this may not be the end of her case. However, it is likely that other claims may follow. As these cases are very fact specific, it is possible that an athlete in different circumstances may have more success – this decision not being binding on another tribunal. Separately, athletes who feel that their current rights do not give them sufficient protection may also seek to bring alternative claims, such as for discrimination in the country court, potentially encouraged by the stand that Varnish has taken. For now though, UK Sport and British Cycling will be relieved that Varnish did not win her claim as had she done so, this could have had a substantial effect on how athletes are funded, not least because the associated costs of funding an athlete would have to increase to include elements such as pension and national insurance contributions.
For a more in depth look at the issues please see our earlier blog here.