In the recent case of Varnish v British Cycling Federation t/a British Cycling the EAT upheld the Employment Tribunal’s decision that a professional cyclist was neither an employee nor a worker of the British Cycling Federation (the BCF) within the meaning of s230 of the Employment Rights Act 1996.
The EAT confirmed that the Employment Tribunal was entitled to find that Varnish did not work for the BCF (a not for profit organisation) and that the package of services and benefits that it made available to her did not amount to remuneration.
Varnish, a professional competitive cyclist was selected to join the BCF’s World Class Programme in 2006. During the course of her relationship with the BCF Varnish entered into various “Athlete Agreements”. The Agreement in question was entered into on 15 November 2015 (the Agreement) and provided that it was not a contract of employment, nor was it intended to create an employment relationship.
Under the terms of the agreement the BCF was required to develop a performance plan and goals for Varnish and to provide support services. Varnish 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, Varnish agreed, among other things, to train hard for the purpose of winning medals for the British cycling team, attend training camps, enter identified competitions, wear team clothing, obtain and maintain the highest possible levels of health and physical fitness, and allow her image to be used in a promotional capacity.
In March 2016 the Agreement was terminated for performance related reasons upon which, Varnish commenced proceedings in the Employment Tribunal. Among other things Varnish pleaded unfair dismissal and discrimination.
In summary, the Employment Tribunal found that the Agreement properly reflected the relationship between the parties and consequently that Varnish was not an employee of BCF. It also found that there was no mutuality of obligation between the parties because Varnish was not provided with remuneration in return for work. Varnish agreed to train in the hope she would achieve success in international competition. She did not receive any money from the BCF. The money that Varnish did receive was a means tested, non-repayable grant based on her future potential from UK Sport, a separate, executive non-departmental public body. The Employment Tribunal was content that this did not amount to remuneration. Similarly, she was free to choose her own coach and equipment if she wished. The EAT dismissed the appeal and confirmed that the Employment Tribunal had applied the correct approach by asking 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. Furthermore the EAT found that the Employment Tribunal had not erred in finding that Varnish did not receive remuneration.
The Employment Tribunal found that Varnish was not a worker under S.230(3)(b) ERA (a ‘limb (b) worker’). Among other things, the Agreement was a contract where services were provided to Varnish, not the other way around. Varnish argued to the EAT that the Employment Tribunal had failed to recognise that the obligation to train hard for the common purpose of achieving medal success for the British cycling team was work done by her for the BCF. The EAT went on to dismiss the appeal and held that the Employment Tribunal had considered all the relevant factors and permissibly concluded that what Varnish did, albeit that it involved training very hard, did not amount to personal performance of work or services for the BCF.