Employment Status: Modern day gladiators are independent contractors…or are they?

16 November, 2017
by: Cripps Pemberton Greenish

Are your staff correctly classified as independent contractors or employees? It seems that even governing bodies like UK Sport and British Cycling may be getting it wrong. 

For many the Olympics are the sporting pinnacle, the event where the best athletes perform in front of the biggest audiences.

It is widely accepted that in a performance driven environment tough calls on selection need to be made.

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However, the much publicised case of former Olympic track cyclist Jess Varnish has raised big questions over the merits of the decision to drop her from the British Cycling Olympic podium programme (see Background).

Next Steps

Despite the best efforts of British Cycling and UK Sport, a preliminary employment hearing has been scheduled for April 2018 to consider whether Varnish was in fact an employee of British Cycling and UK Sport.

PR Disaster

Varnish’s claims centre around allegations of a working culture of bullying and discrimination.

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In such circumstances it is a bit of another PR disaster when a court determines that you have been heavy handed, and ‘overly aggressive’, when making applications for Varnish’s case to be dismissed, and for a costs and deposit order against Varnish.  

If the costs and deposit orders had been successful Varnish’s assets would have been frozen, in short she would not have been able to fund her case.

It comes across as if British Cycling and UK Sport were using their comparative economic strength to silence Varnish.

Employment Status

Varnish is bringing claims related to whistleblowing, victimisation, and unfair dismissal. However, the far more wide reaching consideration is whether or not she and other athletes funded by UK Sport are independent contractors or employees?!

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Employees have significantly more rights than independent contractors, such as unfair dismissal protection and the right to engage with grievance procedures – which along with a lack of a whistleblowing procedure was one of the main contentions and concerns stated by Varnish.

Although the above may be concerning, the far bigger concern for UK Sport, as well as other sporting institutions (and most other entities involved in the gig-economy in such an instance)  is going to the economic implications.

At present because athletes are not treated as members of staff, UK Sport and British Cycling are not required to pay NMW, pension contributions and national insurance contributions.

This could all be about to change, shortly followed by review of the funding of athletes ….

Background

Having been dropped by British Cycling (her contract on the Olympic podium programme was not renewed) on the claimed grounds of performance criteria, Varnish challenged the decision and made serious allegations against her former coach Shane Sutton (who resigned and is now coaching the Chinese track cycling team).

Her claims included that he told her ‘to go and have a baby’ as well as saying she was too old. Sutton denied the claims.

An independent review was carried out, but the result did little to appease or please anyone involved. As a result, Varnish indicated she was considering legal action.