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Jess Varnish case could lead to ‘wholesale change in the treatment of athletes’

British Cycling pursuit team 2007
Daniel Ostanek
6 Dec 2018

Employment lawyer argues that the case may lead to elite athletes gaining ‘employee’ status and subsequent rights

The outcome of the imminent court case involving track sprinter Jess Varnish could have wider implications for other UK Sport athletes, according to an employment law expert.

Varnish is suing UK Sport and British Cycling over allegations of discrimination, and a preliminary hearing at Manchester Employment Tribunal is due to start on 10th December.

That hearing will rule on whether Varnish was self-employed or an employee of UK Sport as an athlete receiving funding from the government body. If the tribunal rules that Varnish was an employee, further hearings will take place in 2019.

Sam Minshall, associate in the sports business group at law film Lewis Silkin, argues that a ruling in Varnish’s favour may allow other athletes to pursue similar claims, and also force governing bodies to recognise athletes as employees.

Employee or self-employed

‘In Olympic sports, many athletes receive money from UK Sport, from grant funding, through appearance fees and prize winnings,’ said Minshall. ‘Many have to supplement that income with ‘normal’ day jobs.

‘The preliminary hearing – heard in public – will determine which, if any, of Varnish’s claims the employment tribunal has jurisdiction to hear. Varnish’s lawyers will try to establish that she was an employee of British Cycling and/or UK Sport, as employment status grants the widest range of protections for individuals.’

Should the tribunal reject this claim, then the case will effectively be over before it begins, with the discrimination claim depending on whether Varnish is in employment as defined by the Equality Act.

‘Ultimately, if Varnish establishes her status as an employee or worker at the Tribunal, it could provide the necessary spark for other athletes to pursue similar claims,’ said Minshall. ‘It could also trigger an acceptance from UK Sport and the governing bodies they fund that athletes are employees, leading to a wholesale change in the treatment of athletes in those funded sports.’

Enjoying employee status would potentially have far-reaching consequences for the rights of athletes, beyond just the tribunal rights. Statutory rights such as minimum wage or paid holiday could conceivably become considerations for governing bodies.

‘However, it is important to note that this is only one case. Employment cases are highly fact-specific,’ Minshall added. ‘[And] as a final thought, athletes should not see employment status as the holy grail.

‘Whilst employees are afforded far greater protections under the law than the self-employed, the ability to pursue your right in a tribunal is by no means painless.

‘Even if an athlete is successful in tribunal, there is no guarantee of reinstatement; financial compensation is unlikely to adequately compensate someone whose career typically has a short shelf-life.’

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