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Varnish loses employment tribunal appeal in British Cycling case

during Day Three of the UCI Track Cycling World Championships at the National Velodrome on February 20, 2015 in Paris, France.
(Image credit: Getty Images Sport)

Jess Varnish has lost her appeal against an employment tribunal ruling and will therefore be unable to take further action against British Cycling.

The former track sprinter returned to the tribunal in May to appeal the original ruling, which considered she was not technically an employee of the sport’s governing body, nor of UK Sport, the body which allocates lottery funding for Olympic and Paralympic athletes.

Varnish had hoped that establishing either ‘employee’ or ‘worker’ status would give her the rights to take legal action against British Cycling after she was dropped from the Olympic Programme in 2016.

Varnish intended to sue for unfair dismissal and discrimination, disputing that she was dropped for ‘performance reasons.’ An internal British Cycling investigation found coach Shane Sutton used "inappropriate and discriminatory language" towards her, but only upheld one of the eight allegations against the Australian.

In January 2019, the employment tribunal ruled against Varnish, considering her lottery funding as a ‘grant’ and finding “no mutuality of obligation” between her and British Cycling. On Tuesday, the judgement from Varnish’s appeal hearing upheld that verdict.

"Held, dismissing the appeal, that the Tribunal was entitled to conclude, based on an evaluative judgment taking account of all relevant factors, that the Claimant was not an employee or a worker," read the case summary.

"The Tribunal had not erred in its approach to the assessment of employee status and nor had it reached conclusions that no reasonable tribunal, properly directed, could have reached."

Varnish is yet to publicly respond to the ruling, but British Cycling issued a statement at midday on Tuesday.

"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," it read.

"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."

Varnish was dropped from the Olympic programme in April 2016, a month after she had publicly criticised British Cycling when she and Katy Marchant failed to qualify for the team sprint at the Olympic Games. While British Cycling management insisted she was released purely for performance reasons, Varnish felt her comments had triggered her dismissal, and she claimed that requests to see her performance data fell on deaf ears.

She then came forward with allegations of sexism against Sutton, claiming the coach had told her to ‘move on and go and have a baby’. A British Cycling investigation found Sutton had used ‘inappropriate and discriminatory language’ but Varnish was angered when it later emerged that it had only upheld one of her nine allegations against Sutton.

She moved to sue for unfair dismissal and discrimination but found a stumbling block in the form of her employment status, and the ruling will set a precedent for publicly funded athletes who train and compete under national federations. 

"I want to give athletes an opportunity to hold to account employees of governing bodies, who they interact with on a daily basis, and have significant control over their careers and opportunities," Varnish said ahead of her appeal.

"I continue to think it's unfair that athletes still have no structured means to do this, and I hope this appeal will be the first step towards affecting change, and bring about a fairer, more modern high performance system in the UK where athlete welfare is not just a soundbite, but something that we all believe in."