The EAT has held that an employment tribunal was entitled to conclude that a professional cyclist was not an employee or a worker of the British Cycling Federation. In Varnish v British Cycling Federation (t/a British Cycling) the claimant had commenced proceedings before an employment tribunal claiming, amongst others, unfair dismissal and discrimination. The preliminary consideration for the employment tribunal was whether the claimant was an employee or a worker within the meaning of s230 Employment Rights Act 1996.
The claimant had entered into a series of written “Athlete Agreements” with British Cycling (the respondent), the last of which was in 2015 (the Agreement). Under the terms of that agreement she undertook to train hard for the common purpose of winning medals for the British cycling team. The agreement was clearly stated not to be an employment agreement. Under the agreement British Cycling developed an Individual Rider Plan (IRP) for the claimant and agreed to provide a package of services including coaching support, clothing, sports science and medical support, travel and accommodation expenses (which were valued at approximately £600,000 – £700,000 over a four year period). Under a clause in the Agreement the claimant agreed to comply with the IRP and also train with the squad, enter certain competitions and follow all reasonable directions. The Agreement was terminated for performance related reasons in March 2016, following which the claimant brought proceedings.
The Employment Tribunal found that the claimant was not an employee. It considered that the Agreement was not a sham and truly reflected the arrangement between the parties. In considering all the elements that have arisen in case law for determining whether there is an employment relationship, the tribunal held:
- There was no “mutuality of obligation”. The claimant did not work in exchange for remuneration. The respondent did not provide the claimant with work. The claimant received no money from the respondent; the only payment she received was a means tested grant from UK sport. The services and benefits provided to the claimant did not amount to remuneration.
- Personal Performance: The claimant was not personally performing work provided by the respondent. She was personally performing her commitment to train. This did not amount to personal performance consistent with a finding of a contract of employment.
- Control: While the claimant was subject to an element of control, the lack of mutuality of obligation and personal performance meant that there was no contract of employment.
- Other factors: While some features of the Agreement (integration into the organisation, media guidelines and commercial restrictions) indicated employment status, the claimants bargaining position, financial arrangements and others did not and so on balance there was no employment relationship.
The Employment Tribunal also went on to find that the claimant was not a worker under s230 (3) (b) ERA (a limb (b) worker). It held that the claimant was not personally performing work for the respondent and that the contract was not a contract for services from the claimant to the respondent. In fact the services were provided to the claimant. Again, looking at the whole picture the arrangement was not consistent with worker status.
The claimant appealed to the EAT on the basis that the Tribunal had erred in finding that there was no mutuality of obligation and in concluding that the claimant was not a limb (b) worker. Finally, the claimant appealed that the tribunal’s reasoning was irrational in relation to certain findings of fact.
In looking at the mutuality of obligation, the EAT held that it is often difficult to consider cases by reference to that term. It held that the Tribunal had applied the question from previous case law as to whether or not there was an agreement by the claimant to undertake some amount of work, and in return for being given that work to receive pay. The claimant relied on previous cases involving professional football players and argued that those implied that a professional athlete could be considered as providing work. However, the EAT drew a distinction with these cases since in the football club cases, the player was required to “serve the club” and the club was required to pay the player, thus being consistent with employment. The EAT also held that the mere fact that training done by an athlete in one sport or case was found to comprise work does not mean that the same must apply to any other athlete who trains hard for the common purpose of achieving success for team or country. Difficulty exists because the legislation does not seek to define what is meant by “work” or “service”. The constantly evolving nature of what is regarded as amounting to work or service would probably make such definition impossible. The EAT could only interfere with the Tribunals evaluative judgment regarding considering the claimants training (amongst other matters) as work, if there is some clear misdirection or if the conclusion reached is one that no reasonable tribunal properly directed could have reached. The EAT held that this was not the case here.
While this was sufficient to dismiss the appeal, the EAT also held that the tribunal had not erred in finding that the claimant did not receive remuneration. While the services offered to the claimant were valuable, they were provided to help her train and were not remuneration. To suggest otherwise would be akin to saying that the tools given to a person to do the job, are the person’s pay for doing that job.
With regard to limb (b) worker status, the EAT held that the tribunal had considered all the relevant factors and permissibly concluded that what the claimant did, did not amount to personal performance of work or services.
It is not clear whether the claimant will seek permission to appeal to the Court of Appeal.
This post has also been posted on Inside Sports Law blog https://insidesportslaw.com/blog/2020/q3/professional-cyclist-held-not-to-be-an-employee-or-a-worker/
