Statement on Jess Varnish v British Cycling & UK Sport
Jess Varnish is represented by Simon Fenton of Constantine Law
Jess Varnish’s claim against British Cycling and UK Sport will be heard at Manchester Employment Tribunal from 10 – 17 December 2018. This case could change the face of British sports funding in the UK.
This is the first part of her claim and will deal solely with her employment status. The question before the Tribunal will be: ‘Is she self-employed or is she an employee (or worker)?’
There are 3 classes of paid engagement; (1) employee, (2) worker and (3) self-employed. Both ‘employee’ and ‘worker’ come with protections against discrimination, the right to the National Minimum Wage, paid holiday, whistleblowing protection etc. The self-employed do not have such protections.
It is Varnish’s case that she was an employee (or worker), with the right not to be discriminated against.
This case comes in a line of decisions from the cases of Uber, Addison Lee and Pimlico Plumbers which show how tribunals are looking at what actually happened in practice rather than simply accepting what is said in the contractual documentation. And they are deciding that the individuals are workers.
If it is decided that Varnish was either an employee or worker, she will have to come back to tribunal some time in 2019 for them to decide whether she suffered sex discrimination. In a sense, what happens to Varnish at the later hearing is much less significant that the status hearing in December. This is because the status hearing potentially affects all UK Sport funded athletes, whereas the sex discrimination trial will be about Varnish alone.
The wider implication is that if a UK Sport funded athlete is given worker or employee status, then UK Sport will be required to overhaul its current funding system. The significance of this case has been likened to the Bosman ruling in professional football which allowed footballers to be free agents after their contracts expired.
The purpose of demonstrating that UK Sport funded Athletes should be regarded as employees or workers is to ensure that all athletes in the future will have protection from bullying and discrimination, be subject to income tax and receive full state pension allowances It will also ensure that UK Sport presides over a more positive and egalitarian environment for all athletes now and in the future.