Ms J Varnish v British Cycling Federation T/a British Cycling and UK Sports Council T/a UK Sport: 2404219/2017

RESERVED JUDGMENT Case No. 2404219/2017 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 Before: Employment Judge Ross On: 10, 11, 12, 13, 14 December 2018 17 December 2018 (in Chambers) 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. 1 RESERVED JUDGMENT Case No. 2404219/2017 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. 2 RESERVED JUDGMENT Case No. 2404219/2017 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 3 RESERVED JUDGMENT Case No. 2404219/2017 Team Sky from 2010 to 2017, I attached no weight to it because Dr Freeman did not attend the hearing and accordingly there was no opportunity for him to be questioned. 12. For the first respondent I heard from Mr Barnes (Head of Legal and the Inhouse counsel for British Cycling); Mr Dyer (Head Coach of British Cycling) and Mr Harrison (Programme Director of British Cycling). 13. For the second respondent I heard from Ms Nicholl, CBE, Chief Executive Officer. 14. Accordingly, this hearing was to determine whether or not the Tribunal had jurisdiction to hear the claimant's substantive claims. The Facts I find the following facts: 15. The claimant is a very talented professional cyclist. She started racing when she was about seven years old. When she was a 12-year-old schoolgirl she was selected for the British Talent Team Programme which had been established by British Cycling. 16. In 2006, whilst she was still at school the claimant was selected to join the World Class Programme (“WCP”) as a junior sprinter, aged 15. She was later promoted to the Olympic Academy Programme when she was aged 17. From this programme the claimant was selected for the Olympic Podium Programme. 17. In the early part of her career when she was a schoolgirl the claimant was living at home with her parents in Worcestershire. They drove her to training sessions and race camps in Newport, Wales, and in Manchester. When the claimant had completed her A levels she moved to Manchester to continue her development as a sprint cyclist. She lived in accommodation subsidised by British Cycling. 18. British Cycling runs the World Class Programme for cycling. I find the World Class Programme is an overarching programme designed for success at international competitions. The programme includes a Junior Academy for athletes who are typically 16-18, a Senior Academy for athletes with the potential to be world class athletes, typically aged 18-23, and the Podium Programme for elite world class cyclists. 19. British Cycling is the trading name of the British Cycling Federation, a private company limited by guarantee. It is a not for profit organisation but, unlike UK Sport, it is not a public body. 20. The objectives of British Cycling are to promote and control the sport of cycling in the UK. British Cycling is a membership organisation. It supports the interests of its members through local clubs and privately organised racing meetings, through promotions and insurance policies. It issues race licences. Individuals who wish to participate in competition must obtain a race licence from it in order to compete. It is the national governing body for cycle sport. It oversees sporting 4 RESERVED JUDGMENT Case No. 2404219/2017 competitions in the disciplines of road, track, BMX, mountain biking, cyclo-cross and cycle speedway. It administers most competitive cycling in Great Britain. 21. I find that anyone can become a member of British Cycling and since the early 2000s British Cycling has experienced tremendous growth in membership. In 2006 its membership was only 15,000 members whereas now it is in the region of 145,000 members, each of whom pays an annual subscription. The majority of British Cycling’s expenditure is used in connection with furthering public participation in cycling. 22. In its most high profile role,...