Lance Armstrong, the now disgraced United States former cyclist wrote an bestselling autobiography called “It’s not about the bike: My Journey Back to life“. A very apt title for this Blog article which does involve a cyclist, but it’s also much more than that: it addresses the eternal question in employment law as to who is an employee?
In 2019, I started this Blog by writing about Jess Varnish, the former British and Olympic cycling champion who took British Cycling and Sport UK to an Employment Tribunal alleging wrongful dismissal. Ms Varnish lost that particular round, but she was then given the right to appeal against the original Tribunal decision.
Wrongful dismissal (which is distinct from unfair dismissal) occurs when a person has their employment contract terminated and such a termination is a breach of the contract. Such situations commonly occur where, for example, the employer dismisses the employee without the proper notice period being given.
Only individuals with a contract of employment as defined by Section 230(1) of the Employment Rights Act 1996 can bring a claim for wrongful dismissal against the employer. Such individuals are said to have a contract of service as opposed to a contract for services.
If you are an employee you either have entitlement to certain legal rights and protections – or the ability to acquire these e.g. the right not to be unfairly and/or wrongfully dismissed; the right to a redundancy payment; the right to request flexible working patterns etc.
If, however, you are engaged (not employed) by an organisation, you enjoy none of these rights or the ability to acquire them. This situation applies to an increasing number of people who are engaged on contracts for services e.g. the genuinely self-employed; freelancers; zero hours workers; piece workers; and so called Gig Economy workers.
Fast forward to 2021 and the Employment Appeal Tribunal has now issued its ruling in Ms Varnish’s case. It is a disappointing result for Jess Varnish as the Appeal Tribunal finds itself in agreement with the Employment Tribunal that she was not an employee and, therefore, she did not have a contract of service with either British Cycling or UK Sport. Her appeal is therefore dismissed.
A link to the Employment Appeal Tribunal decision can be found below:
You will also find a link to an article in The Guardian about the case:
Copyright Seán J Crossan, 13 January 2021
Seán Crossan's Scots Law 