A recent lockdown-inspired TV rerun of the 2012 Olympic opening ceremony served only to confirm that it felt like several lifetimes ago. One of the stars of the British team was Jess Varnish, who this month lost her appeal against an Employment Tribunal decision that she wasn't a worker or employee when under contract with British Cycling (and so couldn't pursue tribunal claims arising from British Cycling dropping her).
The decision wasn't particularly surprising in itself. Although she did sign a contract with British Cycling – an "Athlete Agreement" requiring her to commit to training in return for facilities, training and support - it appeared clear that the purpose of the contract was essentially to assist her to win medals. British Cycling was effectively agreeing to support her sporting aspirations (although obviously it had a vested interest in her achieving those). The Employment Tribunal held (and the Employment Appeal Tribunal upheld this finding) that the services provided by British Cycling couldn't be characterised as remuneration for working on behalf of British Cycling. Effectively she was working for herself, in partnership with British Cycling.
Unfortunately, the case is a reminder that the law on employee and worker status is hopelessly complicated and that it's very difficult for businesses and staff to predict the outcome of individual cases. The Employment Appeal Tribunal emphasised that the case didn't lay down any general principles about the employment status of professional athletes and didn't even clarify the law as to exactly what contractual obligations must exist for an individual to be a worker.
The Supreme Court will have an opportunity to bring some clarity into this area this month, when it hears Uber's appeal in the long-running case brought by Uber drivers claiming worker status. There are two crucial points in the case. First, how far the law allows Employment Tribunals to disregard the written terms of the contract between the parties when determining questions of worker or employee status. Second, whether the relationship between Uber and the drivers it engages (and how this relationship works in practice) indicates worker status.
Uber has already lost similar cases in other jurisdictions, including a recent defeat in Canada's Supreme Court where its arbitration clause was held to be unconscionable and invalid. Whatever the outcome of this latest instalment, businesses reliant on contractors will hope that the Supreme Court clarifies whether their self-employed contracts are worth the paper they're written on.
