The importance of being an employee: Jess Varnish loses appeal against tribunal claim was not an employee

Former Great Britain cyclist Jess Varnish has spent years in a legal battle over her claim that she should be considered as an employee of British Cycling. Miss Varnish lost her initial case in January 2019, with the employment tribunal finding that the relationship was not that of employee or worker. Miss Varnish appealed to the Employment Appeal Tribunal which agreed with the original decision, finding that the relationship was more like, “students receiving grants”.

Why was it important that Miss Varnish should be considered as an employee?

All employees benefit from all of the protection afforded to “workers” as well as additional rights to the following:

• Statutory Sick Pay;
• Statutory Redundancy Pay;
• Statutory maternity, paternity, adoption and shared parental leave and pay;
• Protection against unfair dismissal;
• The right to request flexible working; and
• Protection under the Transfer of Undertaking (Protection of Employment) Regulations 2006.

If she had been deemed an employee, it would have paved the way for Miss Varnish to sue both British Cycling and UK Sport for wrongful dismissal and sexual discrimination after she was dropped from Team GB in the build-up to the Rio 2016 Olympics. As she is not an employee, she can no longer pursue this claim.

How do I know if I am an employee?

An employee is an individual who has entered into or works under a contract of employment. A contract of employment is a contract of service, whether in writing or implied over a period of time.

The 1968 case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and NI set out some basic requirements for an individual to be an employee:

• The employee must be paid;
• The employee must have agreed to carry out the work personally (i.e. they cannot hire someone else to do it for them);
• The employer must exercise at least some control over the individual; and.
• The employee must be obliged to carry out work for the employer, and the employer must be obliged to provide that work.

What are the differences between employees and workers?

The main difference is that there is no obligation on the worker to perform any work for the company and no obligation on the company to provide any work to the individual. Workers are entitled to fewer statutory rights than employees, but do have some key legal rights, such as protection from discrimination and against unlawful deduction from wages.

If you have any questions in relation to this story, your employment status or any other employment-related issue, contact our Employment Law Team on 01908 660966/ 01604 828282, or email employment@franklins-sols.co.uk.