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In Varnish v British Cycling Federation, UK Sport (Case No 2404219/2017), the Employment Tribunal considered whether the claimant, a former Great Britain cyclist, was an employee or worker for either of the respondent organisations (or jointly under a tripartite agreement) within the meaning of the Employment Rights Act 1996 or the Equality Act 2010. In December 2019, the Claimant won the right to appeal the Tribunal’s decision and the appeal is likely to be heard in 2020.
The Tribunal held that she was not. Instead, the Tribunal found that the relationship was more analogous to the provision of an education grant to a student. The dominant purpose of the contractual arrangements entered into by the claimant was to enable her to be the best athlete she could possibly be. In those circumstances, no employment relationship arose.
The claimant brought claims of unfair dismissal, direct sex discrimination, victimisation and unlawful detriment for having made protected disclosures. Her claims centred on the termination and non-renewal of her contractual arrangements when she was a professional cyclist with the GB Cycling Team.
The claimant was a very talented track cyclist. Since 2010, she had been part of the Podium Programme for elite world class cyclists run by the first respondent, British Cycling. The relationship between British Cycling and the claimant was reflected in an “Athlete’s Agreement”. Although no funding was provided under this agreement, the claimant agreed to develop and agree an “individual rider plan” which was effectively an agreement to train in the hope she would be selected to compete for the British Cycling Team.
The claimant also received (following an application) a tax-free grant (known as an “Athlete Performance Award”) from the second respondent, UK Sport (a public body responsible for funding Olympic and Paralympic sport at a UK level, represented by Jane Mulcahy QC). Although administered by UK Sport, the Award was funded by the National Lottery. The purpose of this funding was to provide the claimant with a financial platform to be able to focus on full or part-time training. The funding was subject to means-testing and provided solely at the discretion of UK Sport (upon receipt of recommendations by British Cycling).
The Tribunal considered that there was no employment relationship between the claimant and British Cycling giving rise to employee or worker status. In this respect:
The Tribunal also considered that there was no employment relationship between the claimant and UK Sport. In this respect:
Finally, the Tribunal rejected the submission that there was a tripartite agreement between the claimant and the respondents, with both of them acting as the claimant’s employer.
National sporting and funding bodies are likely to breathe a collective sigh of relief following this judgment. Had an employment relationship been found to exist, this would have had significant consequences for organisations such as British Cycling and UK Sport and their contractual and funding arrangements for elite athletes. Such organisations would have been subject to the obligations required of employers under the Employment Rights Act and related legislation, as well as by reference to the Equality Act 2010.
The Varnish case, however, was at the outer edge of what might possibly constitute an employment relationship. Given different facts – contractual arrangements that imposed a work for wage component and/or greater degrees of control, for example – the employment relationship line may well have been crossed.
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