Neither an Employee nor a Worker

In Varnish v British Cycling Federation t/a British Cycling, the EAT has held that an employment tribunal was entitled to conclude that a professional cyclist was neither an employee nor a worker of the British Cycling Federation (a not-for-profit organisation) within the meaning of S.230 of the Employment Rights Act 1996. 

The background to this case is that Ms Varnish, a professional competitive cyclist, was selected to join the BCF’s World Class Programme, and was subsequently asked to take part in its Olympic Podium Programme. Over the course of her relationship with the BCF, Ms Varnish entered into various ‘Athlete Agreements’, (‘the Agreement’). The last Agreement expressly stated that it was not a contract of employment and that it was not intended to create an employment relationship. Under the Agreement, the BCF was required to develop a performance plan and goals for Ms Varnish and to provide support services. She had access to, but did not have to utilise, a package of services provided by the BCF, including coaching support, team clothing and equipment, sports science support, medical services, travel and accommodation expenses, and access to facilities. In return, Ms Varnish agreed, among other things, to train hard for the purpose of winning medals for the British cycling team.  The Agreement was terminated for performance-related reasons in March 2016 and Ms Varnish brought proceedings before an employment tribunal claiming, among other things, unfair dismissal and discrimination.

In order to be successful, she had to establish that she was an employee (in order to claim unfair dismissal) or that BCF had provided her with work and that she had worker status.

On the issue of employee status, the tribunal had considered whether or not there was an agreement to undertake some minimum or at least some reasonable amount of work in return for being given that work or pay. It was clear that the tribunal did not consider that selecting Ms Varnish for the training programme or providing her with training facilities and services amounted to providing her with ‘work’. Furthermore, the tribunal was right in finding that Ms Varnish did not receive remuneration. The benefits that she received were valuable but they were provided to enable her to train and compete at the highest levels. They were not remuneration for doing so. To conclude otherwise would be akin to saying that the tools given to a person to do a job are that person’s pay for doing that job. 

As to whether she had worker status, the tribunal had considered all the relevant factors and permissibly concluded that what Ms Varnish did, albeit that it involved training very hard, did not amount to personal performance of work or services for the BCF. The tribunal had relied on its earlier findings as to employee status and also its findings that the Agreement was a contract where services were provided to Ms Varnish, not the other way round. 

Ms Varnish’s appeal to the EAT therefore failed in its entirety.

Source: ELA

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