After Varnish

11 Feb 2019

By: Sport Industry Group

With the dust continuing to settle following the employment tribunal ruling in a landmark case brought by GB Cyclist Jess Varnish, we asked Seth Roe, a senior employment lawyer at Wiggin LLP, to share his expert insight and analysis with Sport Industry readers.

Wiggin is a full-service law firm that focuses exclusively on the areas of media, sport, technology and intellectual property. The firm is a category partner for Brand of the Year at the BT Sport Industry Awards.

The last few years have seen our employment tribunals littered with cases relating to employment and worker status. These have predominantly focused on businesses operating within the so-called 'gig economy' (think Uber, Deliveroo, Pimlico Plumbers, CitySprint etc) and the cases have almost exclusively gone one way with tribunals often willing to make a determination of 'worker' status with the considerable implications this has for the businesses involved. 

It is in this context that former European team sprint champion and world silver medal cyclist Jess Varnish's recent employment claim against British Cycling and UK Sport provoked such substantial concern from those responsible for the funding and governance of British athletes. These bodies will therefore no doubt be breathing a heavy sigh of relief following news that Varnish's claim has been dismissed by Manchester Employment Tribunal. 

The case attracted considerable media coverage and follows allegations Varnish made against British Cycling technical director, Shane Sutton in April 2016 after she was dropped from the UK's elite cycling programme. Varnish alleged various claims (including unfair dismissal, sex discrimination and victimisation) and in order to proceed with these she first had to establish she was either an employee or a worker.

The recent case law suggests that 'control' is now one of the most significant factors that indicates the presence of a working relationship. Presumably because of this, Varnish's lawyers went to great lengths to try and demonstrate she was an employee due to the "extreme control" she claimed her coaches had over her and other cyclists.  This included examples such as being told when and what to eat, being punished in warm ups if she arrived late for training, being subjected to strict control over the taking of holiday, coaches listening to athletes through hotel bedroom doors, regular blood tests and repeatedly being required to sign performance contracts in order to get paid. 

The Tribunal found some truth in many of these examples and agreed that there was a significant level of control exerted over Varnish. However, they stressed this was not the crucial factor in the arrangement between her and the sporting bodies. Instead, Varnish's case fell at the first hurdle as there was held to be no mutuality of obligation between her and either British Cycling or UK Sport. In other words, there was no wage/work bargain at play here – Varnish wasn't 'working' but was simply a very talented athlete on a training programme with the goal to win medals for her country. The relationship was more akin to the relationship between a University and a student and she was therefore not at any stage an employee or a worker. 

With British sport still enjoying a golden age, many will no doubt welcome a decision that if it had gone the other way, could have threatened a funding regime that has led the country to such considerable recent success. From a legal perspective, it is also comforting to see the Tribunal take such a sensible and logical approach to the issues which has arguably not always been the case in some of the recent 'gig economy' cases. 

As the case is only a first instance employment tribunal decision, it does not have any binding effect on subsequent employment tribunals. The decision would only become binding if the case were to reach the employment appeals tribunal (EAT) so it is possible that other athletes may decide to pursue similar claims in the future. 

In respect of Jess Varnish, she is currently deciding whether to appeal but has said she "will not appeal for appeal's sake". Based on the lengthy 43 page judgment, it is difficult to see any obvious avenues open for her to challenge.