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10 November 2017

Uber Drivers get Employment Rights – Athletes next?

4 mins

The Uber decision in the Employment Appeal Tribunal this morning is rightly attracting significant coverage. But the next big employment rights case may be coming from a more surprising profession.

The news (reported by Alyson Rudd in the Times) that Team GB Olympic Cyclist Jess Varnish is currently in Employment Tribunal proceedings against UK Sport and British Cycling is potentially very significant. 

The chief executive of British Cycling, Julie Harrington has previously been quoted as saying that Athletes are not employees and so the same rigour around employee-grievance procedures for example, just hasn’t been there”.

Julie Harrington was (albeit briefly) discussing the failures of British Cycling in handling accusations made by Jess Varnish of bullying and harassment relating to her sex, which were upheld in part by an independent investigation.  The argument Ms Harrington was putting forward was relatively subtle: because athletes are not employees, organisations such as British Cycling are not obliged to hold themselves to similar scrutiny as they would with an employee.  And – her argument appeared to run – if their athletes don’t have employment status they are not liable for unlawful conduct or to pay compensation under the Equality Act 2010 or whistleblowing legislation (the Employment Rights Act 1996).

But questions of liability aren’t quite as simple as that.  Firstly, the protection from harassment relating to sex (or any other protected characteristic) extends beyond employees to people who work in more informal or unorthodox arrangements.  There is no obvious reason why this wouldn’t include athletes contracted or working with a professional body.

More technically, protection from discrimination extends to ‘workers’ or to anyone broadly in an “employment-like relationship” (following the Supreme Court ruling in O’Brien v Ministry of Justice). Assessing whether a particular relationship falls within the statutory protection is a broadly fact based assessment which looks at the nature of the relationship between the parties (i.e. British Cycling and the individual cyclist) and looks at, amongst other things, the control one may have over the other and whether they both are bound to each other by an obligation to perform.  

As Uber, Pimlico Plumbers, Addison Lee and Hermes will attest, there is a current trend of looking carefully into the reality of the relationship rather than merely how it is described.  In all of the major cases which have addressed the question recently, claimants have been successful in having their employment status recognised by the courts, and their rights guaranteed accordingly. This does not mean that Jess Varnish will be successful, but it does indicate that her Tribunal claim – if it proceeds to a hearing – will require a forensic examination of her relationship with the respondents.

The legal position with whistleblowing (or more particularly, protection from detrimental treatment as a result of making public interest disclosures of wrongdoing) is only slightly different from the question of worker status.  There is the need for a contract between the parties (see Gilham v Ministry of Justice) but the same all encompassing approach will be given to determine the balance of control and obligation between the parties. 

Interestingly, the report that she is also claiming sex discrimination, victimisation and whistleblowing indicates she is seeking to establish worker status. But the reported claim of unfair dismissal goes further still, indicating that she may be seeking to establish employee status.

As there are likely to be relatively draconian controls on what potential Olympic athletes are expected to do, how they do it, and when they do it, all of which determined by British Cycling, it is not unreasonable to suggest that currently and historically, equality and whistleblowing protection does and should extend to athletes working under these programmes.  There is in principle no reason why full employment status cannot also be established.

The prospect of athletes establishing employment status will have significant implications for the governance of sport in the UK, and it is likely that the case will be watched closely by governing bodies. If unfair dismissal rights – to which employees are entitled – are established, this will significantly redraw the way in which athletes are funded engaged.

As six-time gold medal winning cyclist Jason Kenny put it in Rio 2016, “I have the best job in the world”. It may now be for a judge to decide the legal form that this job takes. 

Peter Daly was quoted in the Times in its report that Olympic Cyclist Jess Varnish is to sue UK Sport and the British Cycling governing body: Jess Varnish will sue UK Sport. The case potentially raises very interesting questions about the employment status of athletes.

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