Ms J Varnish v British Cycling Federation T/a British Cycling and UK Sports Council T/a UK Sport: 2404219/2017
| Judgment Date | 16 January 2019 |
| Citation | 2404219/2017 |
| Published date | 24 January 2019 |
| Court | Employment Tribunal |
| Subject Matter | Sex Discrimination |
RESERVED JUDGMENT
Case No. 2404219/2017
1
EMPLOYMENT TRIBUNALS
Claimant:
Ms J Varnish
Respondents:
1. British Cycling Federation t/a British Cycling
2. United Kingdom Sports Council t/a UK Sport
Heard at:
Manchester
On:
10, 11, 12, 13, 14 December 2018
17 December 2018
(in Chambers)
Before:
Employment Judge Ross
REPRESENTATION:
Claimant:
1st Respondent:
2nd Respondent:
Mr D Reade QC
Miss L Banerjee (Counsel)
Mr T Linden QC
Ms J Mulcahy QC
RESERVED JUDGMENT
The judgment of the Tribunal is that:
1. The claimant was not employed as an employee under a contract of
employment within the meaning of section 230(1) and (2) of the Employment Rights
Act 1996 by the first respondent.
2. The claimant was not employed as an employee under a contract of
employment within the meaning of section 230(1) and (2) of the Employment Rights
Act 1996 by the second respondent.
3. The claimant was not employed as an employee under a contract of
employment within the meaning of section 230(1) and (2) of the Employment Rights
Act 1996 by the first and second respondents under a tripartite arrangement.
RESERVED JUDGMENT
Case No. 2404219/2017
2
4. The claimant was not employed as a worker within the meaning of section
230(3) of the Employment Rights Act 1996 by the first respondent.
5. The claimant was not employed as a worker within the meaning of section
230(3) of the Employment Rights Act 1996 by the second respondent.
6. The claimant was not employed as a worker within the meaning of section
230(3) Employment Rights Act 1996 by the first and second respondents under a
tripartite arrangement.
7. The claimant was not employed as an employee under a contract of
employment, a contract of apprenticeship or a contract personally to do work within
the meaning of section 83(2)(a) of the Equality Act 2010 by the first respondent.
8. The claimant was not employed as an employee under a contract of
employment, a contract of apprenticeship or a contract personally to do work within
the meaning of section 83(2)(a) of the Equality Act 2010 by the second respondent.
9. The claimant was not employed as an employee under a contract of
employment, a contract of apprenticeship or a contract personally to do work within
the meaning of section 83(2)(a) of the Equality Act 2010 by the first and second
respondents under a tripartite arrangement.
REASONS
1. The claimant brings claims of unfair dismissal pursuant to section 98
Employment Rights Act 1996, direct sex discrimination pursuant to section 13
Equality Act 2010 and victimisation pursuant to section 27 of the Equality Act 2010,
and unlawful detriment for having made protected disclosures pursuant to section
47B Employment Rights Act 1996.
2. The claimant’s claims centre on the termination and non renewal of her
Podium Performance Agreement when she was a professional cyclist with the GB
Cycling Team.
3. This preliminary hearing was to determine the following issues:-
(1) whether or not the claimant was an employee who worked under a
contract of employment within the meaning of section 230(1) and (2)
Employment Rights Act 1996 by the first or second respondent;
(2) whether she was employed as a worker within the meaning of section
230(3) Employment Rights Act 1996 by the first or the second
respondent; and
(3) whether the claimant was employed as an employee under a contract
of employment, a contract of apprenticeship or a contract to do work
personally within the meaning of section 83(2)(a) of the Equality Act
2010 by the first or second respondent.
RESERVED JUDGMENT
Case No. 2404219/2017
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4. These issues were identified by Regional Employment Judge Parkin at a case
management hearing on 6 November 2017 (pages 78-79).
5. It is the claimant’s case that she was employed by the first respondent or
second respondent as an employee or that she was a worker as defined by section
230(3) ERA 1996 for the first or second respondent or that she is eligible to bring her
claim under the definition of s83(2)(a) Equality Act 2010.
6. At the submissions stage the claimant's representative also presented a
submission that there was a tripartite arrangement whereby different elements of the
employer’s role were fulfilled by each respondent. In the alternative it was submitted
that UK Sport was the employer but it delegated the running of the World Class
Programme, including the exercise of control, to British Cycling whilst retaining
ultimate oversight and final power to monitor and intervene on who was on the
programme and levels of funding. The third alternative presented on behalf of the
claimant at that stage was that British Cycling alone was the employer and UK Sport
acted under their direction in providing the Athlete Performance Award, performing a
largely administrative function.
7. Both the first and second respondent disputed that the claimant was
employed by them. Both respondents disputed the claimant was a worker as defined
by section 230(3) ERA 1996 for the first or second respondent. Both respondents
disputed she was eligible to bring her claim under the definition of section 83(2)(a)
Equality Act 2010.
8. In addition, Mr Linden for the first respondent and Ms Mulcahy for the second
respondent objected to the way the claimant’s case was formulated at the
submissions stage. They objected because that they had not had the opportunity to
question witnesses on this basis as they had not understood it was the way the case
was being put, given the issues were identified at the case management hearing and
confirmed at the outset of this hearing. The issues identified at the case
management hearing refer to either the first respondent or the second respondent
being the employer or the respondent for whom the claimant worked. The list of
issues does not refer to an alternative scenario of a tripartite or agency arrangement.
9. I reminded the parties that the issues were as determined at the outset of the
hearing and at the case management hearing. Although a List of Issues is not to be
followed slavishly, nevertheless in the interests of fairness it is crucial that all parties,
including the Employment Judge, are clearly aware of the basis on which a case is
being put.
10. However in the interests of justice and given the level of interest in this case,
I have considered the submission made by the claimant's representative and made
findings upon it.
Witnesses
11. I heard from the claimant, her partner Liam Phillips, also a professional cyclist,
and the claimant’s agent, Mr Harper. Although the claimant had supplied an
unsigned statement from Dr Freeman who was the team doctor for British Cycling at
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