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Professional Cyclist Neither Employee Nor a Worker for the Purposes of Tribunal Claims

on Friday, 24 July 2020.

Due to increased flexible working employers will be aware of the expanding body of case law relating to the different types of employment status, and the extent to which traditional employment models are changing.

The case of Varnish v British Cycling Federation t/a British Cycling & United Kingdom Sports Council t/a UK Sport concerns a professional athlete who alleged she was either an employee or a worker of one or both the Respondents. She received funding from UK Sport via a tax free annual award funded by the National Lottery. The Claimant alleged she had been unfairly dismissed, and also brought claims for sex discrimination, victimisation and unlawful detriment.

At first instance, the Employment Tribunal rejected the claims, finding the Claimant to be neither an employee or a worker. That decision has now been upheld by the Employment Appeal Tribunal (EAT). This case is a useful reminder of the key aspects that will be taken into consideration when determining employment status, including:

  • Mutuality of obligation - there was no mutuality of obligation. The Claimant trained because she hoped to be selected for the British cycling team, but this was not guaranteed. British Cycling offered the Claimant extensive services (including coaching) to assist her training and give her the best chance of selection. However, the Claimant was not obliged to take up those services. Therefore, the Tribunal considered that the Claimant was not being provided with work and she was not being paid for work done.
  • Control - the Claimant was found to have agreed to a high level of control by entering into an athlete agreement with British Cycling (the Agreement), but that she could have hired her own coach under the terms of the Agreement had she wished.
  • Personal performance - the Claimant was required to personally perform her training, but as British Cycling was not providing 'work' to perform, this did not indicate an employment relationship.
  • Worker status - the Tribunal held there was no contract personally to do work which would have created a worker relationship. This was on the basis that the Claimant was not providing work or services under the Agreement, but rather, services were being provided to her. In addition, the Claimant was not being paid for work done. Instead, the Claimant had applied for a grant from UK Sport and was successful in her grant application. The Tribunal likened the arrangement to a student attending University and receiving a grant to do so. The relationship did not extend further than that and the Tribunal said that the relationship was not one of employment or worker.

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What Can Employers Learn From This?

This case emphasises the importance of the individual factual background when determining employment status. Depending on the business model in place, there could be potential scope for dispute particularly around more flexible working models. In order to mitigate the risk of dispute as far as possible, it is sensible to ensure robust contractual arrangements are in place which provide an accurate picture of the reality of the working relationship.

For specialist legal advice regarding employment status', please contact Sian James in our Employment team on 07468 698 971, or complete the form below.

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