Track cyclist Jess Varnish brought a claim of sex discrimination against British Cycling and UK Sport last year, following her removal from the Great Britain Olympic team just months before the 2016 Rio Games.
In the UK, protection from discrimination in the workplace is governed by the Equality Act 2010 (the Act). However, in order to be able to bring a claim, an individual must fall within the categories of protected persons under the Act.
Who is protected?
The first category of those protected under the Act are those in “employment” which has a wider meaning for the purposes of discrimination law than for other areas of employment law. “Employment” means “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”.
This definition covers employees, workers and also a wider category of individuals who are self-employed, provided that their "employment" contract obliges them to perform the work personally: in other words, if they are not permitted to sub-contract any part of the work or employ their own staff to do it. Case law has also established that, in addition to personal service, a degree of subordination to the “employer” is required.
Jess Varnish’s legal representative has confirmed that the preliminary hearing to determine whether she was an employee, worker or self-employed falling within the definition of those protected under the Act will take place next week.
As with similar cases on employment status over recent months involving drivers, couriers and plumbers, the case will be decided on its particular facts and the nature of the relationship between the parties, and will not turn solely on the terms of any written contract between them.
If the cyclist succeeds in arguing that she was an employee, worker or someone engaged under “a contract personally to do work”, her claim of sex discrimination can go ahead in the tribunal next year. If she was an “employee” she would also have the right to bring a claim of unfair dismissal subject to establishing the necessary length of service required in the particular circumstances of her case.