Former Great Britain cyclist Jess Varnish has failed in her attempt to prove that she was an employee of either British Cycling or UK Sport at an employment tribunal. Varnish had filed claims relating to her alleged dismissal from and discrimination by both bodies, but first had to establish that she had employment status. Although she lost her claim, the issues raised by Varnish have caused both bodies to give further consideration to the treatment and welfare of athletes.
Great Britain cyclist Jess Varnish began legal proceedings against UK Sport and British Cycling after claiming she was dropped from the United Kingdom's elite cycling programme after failing to qualify for the 2016 Olympics in Rio. Varnish alleged that British Cycling technical director Shane Sutton told her to “go and have a baby” and subjected her to sexist behaviour. An investigation found that Sutton, who had already resigned from the body, had used sexist language, but cleared him of other allegations, including making the “baby” comment. British Cycling maintains that Varnish lost her place in its programme solely on the basis of her performance.
Government agency UK Sport gives more than 1,000 athletes up to £25,000 a year tax free, but insists that this is simply financial support, akin to a university grant. It maintains that such athletes do not have employment status with the agency, and it does not offer benefits such as holidays, sick pay, and pensions. Following a series of recent cases in which individuals have successfully claimed worker status, Varnish attempted to prove that she was, in fact, an employee or worker of UK Sport and British Cycling. She claimed that coaches had “extreme control” over cyclists, citing such examples as coaches listening through hotel doors while away on training camps, being subjected to regular blood tests, and signing performance contracts with coaches. At a hearing in December 2018, Varnish told the tribunal that she and others received emails from coaches saying, “If you don't sign this [contract], you won't get paid this month.”
However, the tribunal accepted the position put forward by UK Sport and British Cycling and agreed that Varnish was not an employee or worker of either body. She is therefore unable to continue her dismissal and discrimination claims in the UK tribunal.
The decision came as a significant relief to UK Sport in particular, which faced the prospect of being forced to entirely overhaul way it funds and contracts athletes if Varnish had successfully proved that she had employment status. Athletes would have gained more rights and protections, but, in turn, there would have been less money to go around, which would no doubt have reduced the number of athletes receiving this vital financial support.
UK Sport commented that the judge's decision gave it “confidence” in the way relationships among athletes, governing bodies, and itself are managed, but added that it would “reflect on the concerns that were raised through this case.” It went on to say that action has already been taken to strengthen the duty of care and welfare provided to athletes, and that it will ensure it has effective and appropriate avenues for raising any concerns.
British Cycling said its decision to contest the case was founded on “the best interests of riders who represent Great Britain,” and that its “relationship with them is not one of employer-employee but that of a service provider supporting talented and dedicated athletes to achieve their best.”
While Varnish is said to be considering whether to bring an appeal, for the time being at least, the judgment signals an end to what became a bitter three-year feud at the forefront of the UK’s sporting establishment. During this period, many claims were aired about the treatment of and the pressures placed on those athletes at the centre of elite sports. Varnish’s case almost certainly encouraged a number of athletes in other sports to speak out about welfare concerns, their rights, and the balance of power with governing bodies. Providing such individuals with a safe avenue to raise concerns about their treatment, particularly where discrimination or harassment is alleged, is critically important.
It is significant that both UK Sport and British Cycling now say they have taken into account the issues Varnish raised and will review the way athletes are treated. Without employment or worker status, athletes have limited protection from ill treatment, and it is up to the sporting bodies with which they engage to look out for their interests and provide appropriate avenues for recourse.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers: