Jess Varnish loses employment tribunal appeal against British Cycling

Jess Varnish, the former track cyclist, has lost her appeal in her landmark employment tribunal case against British Cycling.

The ruling brings to a close a four-year saga, which was triggered by Varnish’s abrupt dismissal from British Cycling’s elite programme a few months prior to the Rio 2016 Olympics.

Varnish, 29, argued unsuccessfully at a tribunal last year that she should have been considered an employee of the governing body or funding agency UK Sport and therefore subject to the same protections.

Her appeal against that ruling has now been dismissed after a two-day remote hearing in May.

Mr Justice Choudhury said the tribunal "had not erred" in ruling that Varnish did not have employee or worker status during her time at British Cycling, but were more akin to 'students receiving grants'.

The ruling is significant because, had Varnish been successful, it would have paved the way for her to sue both British Cycling and UK Sport for wrongful dismissal and sexual discrimination.

Varnish was axed from the programme after she and team mate Katy Marchant criticised coaches following their failure to qualify for Rio 2016 in the team sprint. British Cycling claimed it was for performance reasons. Soon after her exit was confirmed, Varnish claimed she had been told "to go and have a baby" by British Cycling's former technical director Shane Sutton.

It might also have opened the floodgates to other claims from funded athletes. British Cycling’s barrister at the original tribunal, Thomas Linden, memorably said that to recognise Varnish as an employee would be like “the skies falling in” for UK Sport.

“The Varnish case is seen by many as the ‘test case’ for employment status in [UK high performance sport], and as such today’s outcome will be welcome news to the sporting world,” commented Emily Chalkley, Senior Associate at Charles Russell Speechlys. “If Varnish had been successful it could have set precedent and potentially given over 1,000 athletes UK employment rights and pension rights.”

Chalkley added that the legislature needed to do more to clarify employment status, “otherwise we may see many more athletes follow in her footsteps and bring expensive and complicated employment status claims in the employment tribunal”.

Varnish has not yet commented on the ruling, but she may still seek to continue the fight in the Court of Appeal. If she does, and if she is successful, it could yet have a huge effect on sports funding, as UK Sport could be forced to restructure its funding programme, paying national insurance on behalf of athletes and pension contributions for the first time. “It could also lead to athletes making backdated financial claims,” Chalkley said. “HMRC are likely to have a close eye on this case particularly in light of their current focus on employment status for tax and is likely to ‘go after’ British Cycling / UK Sport for unpaid PAYE and NICs.”

For now, though, her race appears to be run.

A British Cycling spokesperson said: “We believe that British Cycling’s relationship with riders who represent this country is not one of employer-employee but that of an organisation supporting dedicated athletes to fulfil their potential. This view was supported in law by the first tribunal, a verdict confirmed by today’s dismissal of Jess’s appeal.

“We had tried to reach a resolution with Jess much sooner, so we regret she was advised to pursue the route of an employment tribunal when other avenues were open to her. Because of our responsibility to represent the best interests of every rider who hopes to compete at an Olympics or Paralympics, that decision meant we had no option but to oppose her case.

“Since Jess raised her concerns about the Great Britain Cycling Team in 2016, we have implemented significant changes to the culture and processes of our high-performance programme. Four years on, and while we are always seeking to improve, we are happy to say that the well-being of staff and riders in our high-performance programme continues to be our highest priority.”