Do you have employees, workers – or neither?

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In a recent case Varnish v British Cycling Federation (t/a British Cycling), Ms Varnish was a professional cyclist and British Cycling is a not-for-profit organisation. It was agreed that Ms Varnish would (amongst other things) train hard for the common purpose of winning medals for the British cycling team.

In the most recent agreement, it was agreed that British Cycling would provide Ms Varnish with a performance plan to provide her with a package of services, benefits and other support to enable her to devote her time to training. Ms Varnish agreed to follow the performance plan, train, remain healthy and follow certain standards of behaviour.

The agreement clearly stated that it was not a contract of employment and British Cycling later decided to no longer pursue the programme for performance reasons.

Ms Varnish bought claims for discrimination and unfair dismissal. British Cycling disputed that Ms Varnish was an employee or a worker.

The Employment Tribunal found that Ms Varnish was not an employee due to:-
  • No mutuality of obligation between British Cycling and Ms Varnish
  • There was no personal performance – that would be in place in a contract of employment and
  • There were other factors that were not in place as would be with a contract of employment such as the tax position.
In addition, the Employment Tribunal also found that Ms Varnish was not a worker either due to:-
  • Ms Varnish not performing any services for British Cycling.
Ms Varnish then appealed to the EAT who dismissed her appeal as it found that the Tribunal had looked at all the relevant facts when determining the status of Ms Varnish agreement with British Cycling.

This case is a good reminder that employers should carefully assess the agreement and how they operate it in practice as Employment Tribunals will look at all the details of the relationship when considering the outcome and it could have been a different outcome if the facts were different.

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