Varnish v British Cycling Federation (t/a British Cycling) (EMPLOYEE, WORKER OR SELF EMPLOYED)

Employment status requires a qualitative assessment of the contractual relationship as a whole. The Ready Mixed Concrete requirements remain a useful starting point, but no single factor is decisive.

An obligation to train, coupled with valuable support and substantial control, does not necessarily amount to personal work or services performed for the other contracting party. A tribunal may find instead that the contract principally provides training, facilities and support to the individual. The dominant purpose of a contract may assist that assessment, provided it is not treated as determinative. An appellate court will not interfere with that evaluative conclusion absent legal error or perversity.

The claimant was an elite cyclist selected for the respondent's Olympic Podium Programme. Under an Athlete Agreement, she was required to follow an individual training plan and comply with substantial controls. The respondent provided coaching, equipment, facilities and other support. The claimant received no payment from the respondent, but could apply to UK Sport for a means-tested Athlete Performance Award.

The Manchester Employment Tribunal held that she was neither an employee nor a limb (b) worker under section 230 of the Employment Rights Act 1996. It found that the agreement provided services to support her training rather than remuneration for work or services performed for the respondent. The claimant appealed on mutuality of obligation, worker status and irrationality grounds.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant was neither an employee nor a limb (b) worker of the respondent.

2. The proper question under section 230 of the Employment Rights Act 1996 was whether the claimant worked under a contract of service. The three requirements in Ready Mixed Concrete were an appropriate starting point: an undertaking, for remuneration, to provide personal work and skill in service for the other party; sufficient control; and contractual terms consistent with a contract of service. The exercise remains multifactorial and qualitative. It requires assessment of the whole contractual picture, rather than a count of factors.

3. The Tribunal had not applied an unduly restrictive test of mutuality. Although its reasoning was brief, it permissibly found that selection for the programme, training facilities and support did not constitute provision of work to the claimant. Her training was not, on the facts and contractual arrangements found, personal work or services performed for the respondent. Rather, the agreement provided services to the claimant to assist her own training and hoped-for international success.

4. The Tribunal was also entitled to find that coaching, equipment and related support were not remuneration in kind. Their value did not decide their character. They were offered to enable training, could in some instances be declined, and their level was discretionary. The separate, variable and means-tested grant from UK Sport was not payment by the respondent for past work.

5. The football authorities did not compel a different result. The contractual obligations in those cases included obligations to serve and to pay, and status cannot be determined by isolating the fact that an athlete trains for competition. The Tribunal's evaluative conclusion disclosed neither a misdirection nor perversity.

6. For limb (b) worker status, the Tribunal's alternative finding was sufficient: the claimant had not undertaken personally to perform work or services for the respondent. The EAT did not determine whether mutuality of obligation is otherwise required for a limb (b) worker, beyond the minimum needed for a contract. The dominant purpose of a contract may be a relevant factor in classification, but must not be used as a shortcut or as determinative.

• Employment Appeal Tribunal: dismissed the claimant's appeal: [2020] UKEAT 0022_20_2005.
• Manchester Employment Tribunal: held, at a preliminary hearing, that the claimant was neither an employee nor a worker of British Cycling, UK Sport, or both under a tripartite arrangement. No citation was stated.