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Assessing employment status of athletes – employees, workers … or something else?

The employment status of elite performance athletes has been examined in a recent Employment Appeal Tribunal (EAT) case between Jess Varnish and British Cycling.

Former Great Britain cyclist Jess Varnish had been attempting to bring an employment tribunal claim against British Cycling over allegations of wrongful dismissal and sex discrimination following her removal from the British Olympic team in the build up to the 2016 Rio Olympics. An initial Employment Tribunal claim in January 2019 was dismissed as it was held that Varnish was not an employee or worker for the purposes of UK employment law. Varnish has now failed to have the initial decision overturned at the EAT, who upheld the original tribunal decision.

The EAT held that "The tribunal had not erred in its approach to the assessment of employee status and nor had it reached conclusions that no reasonable tribunal, properly directed, could have reached." In other words, the tribunal got it right, it did its job in applying the law to the facts and circumstances it found to exist in the case.

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The decision

The employment tribunal dismissed the claim that there was a contract of employment, however did acknowledge that there was a degree of "control" in the relationship between Varnish and British Cycling.

The appeal was brought on three separate grounds:

  1. The tribunal erred in law in finding there was no "mutuality of obligation" between the parties (which is normally a key indicator of an employment relationship);
  2. The tribunal erred in concluding that the claimant was not a "worker" (a different status to that of employee, and easier to establish); and
  3. The tribunal's reasoning was irrational in relation to certain findings of fact.

The EAT judge, Mr Justice Choudhury, ruled that: "The tribunal was entitled to conclude, based on an evaluative judgment taking account of all relevant factors, that the claimant was not an employee or a worker." All three points of appeal were dismissed.

The tribunal did not consider Varnish a "worker". The tribunal had held that instead of an arrangement where services were being provided by the Claimant for British Cycling, it was actually a contract where services were provided to her, such as access to coaching, equipment, medical treatment. It also rejected the submission that the services provided by British Cycling amounted to remuneration, finding that they were "benefits" of the relationship.

By putting the EAT's weight behind the tribunal's judgment on this analysis, the EAT further encouraged tribunals to take a look at the overall picture of any given relationship, when employment status is disputed. The EAT reminded employment lawyers, HR practitioners and the tribunal, not to focus too heavily on undertaking a mechanical tick-box approach to assessing status.

Impact of this decision

If Varnish had been deemed to be an employee (and/or worker), the immediate impact would have been to have paved the way for her to sue both British Cycling and UK Sport for wrongful dismissal and sexual discrimination after she was dropped from Team GB in the build-up to the Rio 2016 Olympics. The broader ramifications for funded sport would have been more significant.

Although in this case Varnish was found not to be an employee or a worker, this does not mean the same treatment will apply to all performance athletes, as their status will depend on their specific relationships with their governing bodies. However, given the nature of the arrangements in place with high performance athletes, for funding and support, with the tendency for these arrangements to be replicated and echoed in different sports, with funding of this nature typically drawn from UK Sport, this case is going to provide comfort to the governing bodies that a successful attack by an athlete on "status" might be some way off. Whilst in legal submissions on behalf of Varnish it was made clear that this case was not about the status of all cyclists or indeed athletes, but about the Claimant specifically, the likelihood is that the case will set a benchmark.

The EAT stated that it was not surprising that the Tribunal did not spend any time expressly considering the position of other athletes, including, for example, professional footballers. They did not see any error of law on the part of the Tribunal in not expressly referring to cases previously seen in football and/or the analogy that is drawn with them.

For our part, that is entirely correct. Professional footballers, the football environment, the regulation of the professional football contract and the commercial enterprise that is the professional football club, bears no relation at all to the operation of, for example, British Cycling.

The EAT noted that the fundamental task of the Tribunal was to determine the nature of the obligations imposed on each party and whether these gave rise to a contract of employment so as to give rise to employee or worker status in law. Further they explained that the mere fact that training undertaken by an athlete in one sport or case was found to comprise work does not mean that the same must apply to any other athlete who trains hard for the common purpose of achieving success for team or country.

It is always possible that Varnish and her legal team will attempt to race on and seek to appeal to the Court of Appeal, but given the comprehensive nature of the judgment and the continued time and cost involved in any such appeal, it is perhaps doubtful whether an appeal will be attempted. The Court of Appeal would, however, have the ability to further overturn these earlier decisions and impose a different finding. If that happened, Varnish would still need to then prove that she had been wronged in law, meaning that success for Varnish in this dispute, if continued, would be years away. Perhaps this may be a key dissuading factor for continued litigation.

Within sport there have been significant sustained efforts to offer further support to athletes and sportspeople through the journey that they take in seeking to improve their performances, sustain their high performance, and ultimately succeed on the highest stage. The fact that Varnish has failed to acquire and assert rights under employment laws will doubtless not deter sports governing bodies and sporting authorities from continuing to attend to and improve athlete and sportspeople relationships and wellbeing; the general "duty of care" as is often spoken of and observed within the sporting arena concerns far more than simply legal obligation and risk.

The wellbeing of athletes and attention to the care offered at all stages of helping athletes and sportspeople on their journey is central to governing bodies' activities, for many far better reasons than compliance alone.

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