20 février 2019

Cyclist not a worker, tribunal finds

Varnish v (1) British Cycling Federation t/a British Cycling (2) United Kingdom Sports Council t/a UK Sport (2404219/2017)

In what represents a departure from the findings of worker status in the recent cases involving Uber, Pimlico Plumbers and Addison Lee, an employment tribunal has found that Jess Varnish was neither an employee nor worker of British Sport or UK Cycling and, consequently, it did not have jurisdiction to hear her claims for unfair dismissal, detriment suffered due to whistleblowing and sex discrimination.

Before concluding that Ms Varnish was self-employed, the employment tribunal asked itself whether there was in place the 'irreducible minimum' , comprising mutuality of obligation, control and personal performance, required to create a contract of service, and recognised there is no one single factor which can be determinative of employment status.

Witnesses on both sides explained how the parties conducted themselves in practice and what their mutual expectations really were, rather than rely simply on stated intentions of self-employed status within contractual documentation.

Important evidence for the employment tribunal were an athlete agreement entered into between Ms Varnish and British Cycling and a grant provided to Ms Varnish by UK Sport (a public body responsible for investing Treasury and National Lottery funding into various sports to drive Olympic and Paralympic medal success).

Although it was found that a high degree of control (a key factor in those recent cases involving Uber, Pimlico Plumbers and Addison Lee) was exerted over Ms Varnish under the athlete agreement, particularly in relation to her nutrition and training and media commitments, it was decided that there was no mutuality of obligation between the parties or requirement for personal performance.

A large number of services were offered to Varnish under the athlete agreement, including access to facilities, coaching support, team clothing and equipment, personal development plans and medical services, but Ms Varnish was not required to avail herself of all of these services.

She was free to choose those services she wanted and she was at liberty to choose her own personal coach (rather than one made available by British Sport) to train in accordance with a personal development plan set by British Sport. It was found that she agreed to train in accordance with this plan but she was not provided with work.

On the point of personal performance, it was found that she was not personally performing work for British Cycling, but was personally performing a commitment to train in accordance with an individual rider agreement with the objective of being successful in international competition. The dominant purpose of the athlete agreement between Ms Varnish and British Cycling was to enable her to be the best athlete she could possibly be.

Although Ms Varnish received various services and benefits from British Cycling, these were not found to be remuneration for work performed but offered to enable her to have the best chance of being selected for international competition.

The tribunal found that the analogy of education to be very useful in the circumstances of this case. It reasoned that the relationship between Ms Varnish and British Sport was more akin to a university relationship, in which education is provided to a student and funding offered in the form of a loan or grant provided by a third party.

Ms Varnish was never paid by British Cycling, but she did receive various non-repayable means tested grants from UK Sport throughout her career with British Cycling so she could dedicate her time and focus to training for elite competition, rather than simultaneously needing to find an income.

The Employment Tribunal's judgment provides that:

''the Claimant was training as an athlete, an elite sprint cyclist in the hope she would be selected to represent Great Britain in international competitions. She was not working for either [British Cycling] or [UK Sport]….She was receiving a non-repayable publicly funded grant from [UK Sport] to enable her to pay her living expenses so she could have the best chance of focussing on her training, without the need to take a job. She was receiving benefits and services from [British Cycling] to enable her to have the best chance to achieve her goal of being selected to compete at the highest level''.

Whilst the outcome of this case represents a significant victory for British Cycling and its contract model, this case once again demonstrates the readiness of the tribunal to closely examine the substance of the day to day relationship, focusing primarily on the long established case law principles of mutuality of obligation, control and personal performance.

Ms Varnish has until 27 February 2019 to appeal against this decision.

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