Varnish removal may be the catalyst for change in sporting contracts?

Jessica Varnish is an elite cyclist, former European team sprint champion and world silver medallist.  Her controversial exclusion from Team GB for the Rio Olympics was the catalyst for serious questions being asked of British Cycling and UK sport about the treatment of the athletes and the culture surrounding the team.  Technical Director Shane Sutton resigned in light of allegations of discrimination, although he consistently protested his innocence (one allegation of discriminatory language was upheld during the widely criticised investigation into the matter).

Ms Varnish’s contract from the Olympic Podium Programme was not renewed, a decision made for performance reasons according to Mr Sutton and not because of Ms Varnish’s criticism of Team selections made in qualifying.  Ms Varnish sought protection under employment law for sick pay, a pension and a right to sue for unfair dismissal on discriminatory grounds.  This required an ET to find in the first instance that the relationship between British Cycling and Varnish was one of employee, or a limb (b) worker status; an outcome that would have far reaching implications for the contractual arrangements and remuneration of elite athletes.

The contract construction under review was a series of agreements setting the expectation for Ms Varnish to participate in specific training programmes run by the not-for-profit British Cycling Foundation.  British Cycling exercised an element of control over commercial work and provided access to sporting grants.  Crucially the contracts stated that Ms Varnish was expressly not an employee of British Cycling.

Under section 230(1) of the Employment Rights Act 1996 (the ERA), an “employee” is defined as an individual who has entered into or works under a contract of employment; the ET would then inter alia look to the elements of personal service, mutuality of obligation and control to assess the relationship status.  The ET in the case looked closely at personal performance and differentiated the arrangement as a general commitment and obligation to train, which was not work carried out specifically for British Cycling in exchange for remuneration.  They also failed to find evidence of a mutuality of obligation between the parties from the contracts.  Ms Varnish made what seemed an ill-conceived argument on appeal, likening her training commitment to that of professional footballers; a curious comparison when it has been well documented that footballers are employees and clearly have a contract of employment under which they provide their services.

The EAT were sympathetic to some of the facts raised and there were clearly issues in some of the decisions taken around Ms Varnish’s selection and cancellation, even though they weren’t significant to change the outcome of the case or effect in anyway the test of employee/worker status.

The case has had a direct impact on British Cycling’s approach to the continuous improvement and well-being of their athletes; they were at great pains to make a statement around improvement in the team culture and processes of the high-performance training programmes.  The spotlight moves now to gymnastics where similar noises are coming out of the camp about abuse and a ‘fear culture’; adding a layer of complexity as athletes tend to be significantly younger.  Ms Varnish may take some comfort that her legal efforts have gone some way to encouraging athletes to bravely speak out against appalling abusive behaviour in sport.

Understanding an employee or worker status is crucial, particularly when things go wrong as it will directly influence the remedies available to the individual.  All situations are unique on the facts, so please contact us in the first instance to discuss.