Workers’ rights for athletes? From Deliveroo to the velodrome
by Nick Humphreys
Accusations of bullying and impropriety among a number of the UK’s sporting bodies have been something of a theme during the past year or so. In the sphere of British Cycling, it is Jess Varnish’s complaints that have repeatedly hit the headlines, most recently with the news that Ms Varnish has presented claims in the Employment Tribunals against UK Sport and British Cycling.
Ms Varnish’s cycling career had at one time been extremely promising. She broke the world record in the team sprint with Victoria Pendleton at the London 2012 Olympic Games and won multiple medals on the world stage in the two years that followed. The wheels began to come off in March 2016, when Ms Varnish failed to qualify for the Rio de Janeiro 2016 Olympic Games, shortly after which she was dropped from the Great Britain cycling team. Following a public spat with then-Technical Director of British Cycling, Shane Sutton, an inquiry was held that led to Mr Sutton’s resignation.
Ms Varnish commenced legal action against British Cycling and UK Sport in 2017. Her claims, which are reportedly based on sex discrimination, detriment on the grounds of whistleblowing, victimisation and unfair dismissal, rely to an extent on whether Ms Varnish can legally be considered to have been an employee of UK Sport and British Cycling at the time that she was competing. This extremely interesting question on employment status, which is due to be determined at a preliminary hearing in April 2018, could have very broad implications for a large number of athletes that receive Athlete Performance Awards from UK Sport, the main body that organises the funding of Olympic and Paralympic sport in the UK.
2017 has already been a significant year in employment law, with key cases on employment status having come out of the so-called gig economy. Among the most widely-reported of these were the decisions that drivers for Uber and riders for Deliveroo have the legal status of “workers”, rather than self-employed contractors and, accordingly, they are entitled to enhanced employment rights, such as paid holiday and sick leave. Although Uber is appealing against this decision in the Court of Appeal next year (Uber’s application to ‘leapfrog’ their appeal directly to Supreme Court having been refused), the decision in this case is likely to influence the decision of the Employment Tribunal in Ms Varnish’s case.
If it is determined that all athletes funded by UK Sport are indeed employees of UK Sport, they would all be entitled to enhanced employment rights of the sort described above (but to which they are currently not entitled). An immediate and tangible effect of such a decision would be a significant increase in UK Sport’s costs of funding each athlete, since UK Sport would be required to pay (among other things) pension contributions and National Insurance Contributions. Additionally, the athletes would have the benefit of various statutory employment rights and UK Sport (and other similar sporting governing bodies) could be the subject of claims if such rights (including, for example, unfair dismissal in the event that an athlete’s funding is withdrawn) are not afforded to the athletes.
Of course, if Ms Varnish’s case were to be settled out of Tribunal, there would be no precedent set as to the employment status of UK Sport-funded athletes and the status quo (that such athletes are not considered employees of UK Sport) would be maintained.
We shall monitor developments with interest. In the meantime, if you wish to discuss any of the issues raised in this article, please get in touch with Nick Humphreys, whose details appear below.