Varnish v The British Cycling Federation (British Cycling)
28th July, 2020
An appeal brought by gold-medal-winning cyclist Jessica Varnish has been dismissed by the Employment Appeal Tribunal.
Varnish sought to overturn an earlier decision made by the Employment Tribunal which concluded that she was neither an employee nor a worker.
Varnish is a professional track cyclist who took part in a series of athlete training programmes operated by The British Cycling Federation (‘British Cycling’). British Cycling is a not-for-profit organisation whose role is to promote and control sports cycling in the UK.
Varnish entered into an agreement with British Cycling, known as an Athlete Agreement, which set out a package of support provided by British Cycling to enable Varnish to compete at a professional level.
In 2016, Varnish’s contract was not renewed by British Cycling. British Cycling argued that the contract was not renewed due to Varnish’s performance. Varnish argued that the decision not to renew amounted to discrimination and unfair dismissal.
The Employment Tribunal found that the relationship between Varnish and British Cycling did not amount to that of employer/employee in accordance with s230 of the Employment Rights Act 1996. This decision was ratified by the EAT who reviewed a number of historical decisions on employment status. Significantly, the ET and EAT found that the Athlete Agreement did not provide for remuneration or work for Varnish. Being part of the ‘Podium Programme’ enabled Varnish to apply for a grant from the National Lottery, a separate organisation whose operation was distinct from British Cycling.
There was accordingly no ‘mutuality of obligation’, an important indicator for a claim for employment. The EAT accordingly concluded that the Tribunal had not erred in law in finding that there was no mutuality of obligation, and in concluding that Varnish was not a ‘worker’ or employee.
Tips for employers
It is important for the status of an individual’s relationship with an organisation to be carefully recorded and agreed between the parties. Careful consideration should be given to the status, i.e. whether an individual will be an employee, worker or self-employed and the terms of the contract should reflect this in writing prior to entering into such a relationship to ensure that it accurately reflects the intended working relationship.
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