By Simon Fenton, Partner at Constantine Law representing Jess Varnish
Two years ago, former Great Britain track cyclist Jess Varnish started landmark legal proceedings against British Cycling and UK Sport. Her argument was that she was kicked off the Olympic Track Cycling team because she spoke out about her management.
As an employee, she would have been able to sue for unfair dismissal, detriment caused from whistleblowing and sex discrimination (she says a man would have been treated differently). But the complicated contractual paperwork said she was not an employee of British Cycling or UK Sport.
The recent cases of Uber and Pimlico Plumbers have established that whatever the contract says; if it looks like an employment relationship, the courts are likely to say that the paperwork does not reflect the reality, and will find that the individual is actually an employee (or worker - a lesser form of employee) and so has legal rights.
So, first of all Ms Varnish had to establish that she was an employee, or a worker.
The 43-page judgment on the issue of her employment status has just been published and it held that she was not an employee or a worker but was self-employed. Her case was that her position was akin to Harry Kane’s with Tottenham Hotspur FC, namely she was professional athlete employed by British Cycling. However, the judge held that her position was more like a student at university. British Cycling was providing a service to Ms Varnish, not the other way around, apparently.
Although Ms Varnish lost her case, in the intervening two and a half years British Cycling has been forced to undertake a full review of athlete welfare and produced an unflattering report, to say the least.
We learned that everyone at British Cycling is an employee – apart from the cyclists themselves - and that there was a ‘win at all costs’ mentality, regardless of the wellbeing of its riders. Nevertheless, the result is that British Cycling has undertaken to change and put athlete welfare at its centre. The case has also inspired other athletes to raise complaints about welfare in various other sports. Ms Varnish’s legal proceedings have been a catalyst for positive change.
British Cycling have said that the employment tribunal decision is good news for athletes, because if cyclists had employee status the additional cost to the organisation would mean fewer cyclists could be supported. This is an argument reminiscent of Victorian mill owners when faced with the new health and safety legislation. Athletes with no rights, no pensions, no holidays or sick-pay but it’s good for them. Really?
As Ms Varnish has stated: ‘I am disappointed at the judgement, but I have no regrets in going through this process. Despite meetings, mediation and attempts at settlement, it was clear that the only way to engage and ensure change occurred within these organisations was a legal challenge.’
It seems unlikely that this decision will stand the test of time, regardless of whether Ms Varnish appeals or not.
Clever legal arguments can only hold back the tide for so long.