It has recently been reported that Jess Varnish, former Great Britain cyclist, has lost in her attempt to evidence that she was either an employee or worker of British Cycling or UK Sport before an Employment Tribunal.

Jess Varnish commenced legal proceedings after claiming she was dropped from the British Cycling squad for the 2016 Rio Olympics in retaliation for criticising her coaches.

As the Claimant, Jess Varnish issued claims of unfair dismissal, direct sex discrimination, victimisation and unlawful detriment for making protected disclosures (whistleblowing) at the Employment Tribunal against British Cycling and UK Sport.

The significance of the Tribunal’s decision is that some core legal protections only apply to employees, most significantly the right not to be unfairly dismissed of which a claim was brought by Jess. Workers are also covered by some employment law protection including the right not be discriminated against under the Equality Act 2010 including sex discrimination and the right not to be subjected to an unlawful detriment which were further claims brought by Jess.

The Tribunal held that Jess was not an employee or worker of either British Cycling or UK Sport meaning that the Tribunal will not have the jurisdiction to hear the claims she brought and she will be unable to pursue them. The Tribunal held that the funding Jess received was comparable to a grant. The relationship between the Claimant and British Cycling was equivalent to a relationship between a University and a student, where education including teaching, lecturing and other services are provided.

An Employment Tribunal will consider several factors in determining whether an individual is an employee, worker or self-employed including:

    • Looking at the contractual relationship as a whole to determine the weight to be placed on the agreed terms including written terms or otherwise. Tribunals often have to consider whether the contractual documentation entered into by the parties is a “sham” that obscures the true nature of the relationship;

    • Control – Does one party have control to a sufficient degree for them to be “master” and the other “servant”? Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it and the time when and the place where it shall be done;

    • Personal service and substitution rights – In most circumstances, an employee is required to provide personal service, whereas it would be consistent with self-employed or independent contractors to be able to provide a substitute or sub-contract the work;

    • Mutuality of obligation – This is where an employer has an obligation to provide work and the individual has an obligation to accept and carry out the work;

    • There are several other factors that will be considered including:
      • Whether the person hires their own help;
      • The degree of financial risk adopted;
      • The degree of investment in and management of the business;
      • Whether the person has the opportunity to profit from their own good performance;
      • Whether the person is paid when absent due to sickness or holiday;
      • Who provides and maintains tools or equipment; and
      • Whether the person hires their own help.

If you require any advice on employment status, please contact Farleys’ employment specialists on 0845 287 0939 or contact us by email.