Recent employment status decisions
The Employment Appeal Tribunal (EAT) has held in Varnish v British Cycling Federation t/a British Cycling that a professional cyclist was not an employee or a worker of the British Cycling Federation (BCF).
The claimant was selected to join the BCF's World Class Programme and was then subsequently selected to take part in its Olympic Podium Programme. She entered into various "Athlete Agreements". Each agreement stated that it was not a contract of employment and that it was not intended to create an employment relationship. The final Agreement was terminated for performance-related reasons in March 2016 and the claimant brought claims for unfair dismissal and discrimination.
The tribunal found that the claimant was not an employee, and that the Agreement accurately reflected the relationship between the parties. There was no mutuality of obligation because the claimant was not provided with remuneration in exchange for work. The services and benefits provided (which included coaching support, sports science support, team clothing and equipment and travel and accommodation expenses) did not amount to remuneration. In addition the claimant was not a worker because the Agreement was a contract where services were provided to the claimant and not the other way around.
The claimant appealed on the basis that her obligation to train hard for the common purpose of achieving medal success for the British cycling team was work done by her for the BCF. The EAT dismissed the appeal; the tribunal had applied the correct approach by asking whether or not there was an agreement to undertake some work in return for being given that work or pay. Selection for a training programme did not amount to providing the claimant with work, and she did not receive any remuneration. As far as worker status was concerned the tribunal had considered all the relevant factors and concluded that what the claimant did did not amount to personal performance of work or services for the BCF.
Meanwhile an employment tribunal has held in Gorman v Terence Paul (Manchester) Ltd that a hairdresser who signed a consultancy agreement with her salon was not genuinely self-employed.
The claimant signed up to an "Independent Contract for Services" in which the salon agreed to engage her as a self-employed hairstylist. The agreement confirmed that the claimant was not an employee. When the salon closed the claimant issued a claim for unfair dismissal and sex discrimination amongst other things. At a preliminary hearing the tribunal considered the issue of whether the claimant was an employee or worker. It noted that she was 19 when she started work for the salon and did not understand the terms of the contract which did not reflect the reality of her working arrangements. She was subject to strict control by the salon when providing her services; there was mutuality of obligation as her clients were allocated to her by the salon; she was obliged to perform services for the salon and the salon was obliged to pay her for those services.
The claimant had no access to information about her clients, was prevented from working for a competing salon during her contract and subject to a 12-month non-compete following termination. In addition she had to seek permission to take holiday, and had 67% of her fees deducted by the salon for use of facilities. As a result the tribunal concluded that she had employee status.
Take note: These decisions show that both the agreements which govern the arrangements made between the parties, as well as the reality of the way in which the relationships work will be carefully scrutinised by the tribunal.