The Vanishing Case: Jess Varnish, Gig Workers and Employment Status

Jess Varnish is a former Olympic medallist. She competed at the highest level of cycling from her teens. Since missing out on the Rio 2016 Olympics, Varnish has been embroiled in a high-profile dispute with British Cycling. The crux of the tribunal has been to determine whether Varnish was an employee or a worker, as there are distinct employee/er rights and obligations. If deemed an employee, Varnish had rights to challenge her treatment and alleged wrongful dismissal.

The latest legal appeal through an Employment Tribunal is now public, and the judge ruled that:

the [original] tribunal was entitled to conclude, based on an evaluative judgment taking account of all relevant factors, that the claimant [Varnish] was not an employee or a worker.

The legal outcome (p. 41) is “the appeal is dismissed.” Varnish was neither a worker or employee in the eyes of the Tribunal, and has few legal rights to challenge her treatment or dismissal. Case closed. Does this mean that the case should vanish from public or legal debate?

I think, no.

Extracts from the Employment Tribunal and specialist commentaries.

In the weeks since the latest appeal decision, I’ve been pondering about employment status and sport. Not everyone in the Sport sector is as fortunate as Jess Varnish to have the capability to challenge an organisation and ask questions of employment law. As Balemelli wrote recently on sport:

Across the board people have been reassessing how the traditional views of what it means to be an ‘employee’ fit within our modern world.

Varnish’s case and decision may vanish into the shelves of legal precedents and media scrutiny. Yet, the fundamental debate connected to the term ‘employee’ is incredibly relevant. In particular, around the tricky area of the ‘gig economy’ and ‘gig workers’ something that has been discussed for the past decade. Now, in the post-Covid-19 lockdown situation the traditional views of employment need to be further reassessed across the Sport sector, cutting across potential areas of ‘gig economy’ exploitation.

Parallels between issues discussed around ‘gig workers’ and Varnish have already been made (e.g Hill, 2019 FT). Roberts and Sojo (2020) identify three sport-specific problematics of the grey area between employee, service provider and grant holder. They articulate imbalances in power relationships manifest in:

  • The high status authority figure who has the power to exert control with few consequences over another individual;
  • The inequality in bargaining power between parties prevents individuals from negotiating the terms that govern their relationship with the organisation/authority they are engaged with;
  • The ‘culture of silence’ in sport prevents individuals from speaking up about grievances for fear of experiencing a backlash.

In reading these three points, I can relate and observe how at the highest level of sport this can manifest but, also, how all organisations/authorities will be vulnerable to such practices. Especially, in current dynamic, as society processes the significant impact of Covid-19.

In a few short figures, the Department for Digital, Culture, Media and Sport (DCMS) in relation to the Sport sector evidenced:

In 2018, the Sport sector had a workforce of 570,000 people, and the sector accounts for 1.7% of all UK jobs in 2018.

The Sports Sector contributed £16.0 bn to the UK economy in 2018, accounting for 0.8% of UK GVA. This is an increase of 2.1% since 2017.

Concerning the direct impact on individuals in the Sport sector, the DCMS further evidenced:

Furloughing has been taken up in much of the Sport sector (gym and leisure, non-playing staff, Olympic and Paralympic athletes) with 18% of sports businesses having furloughed at least three quarters of their workforce. 45% of respondents to a DCMS Business Survey from the Sport sector report a total decrease in monthly revenue.

The evidence above shows the scale of the Sport sector and scale of furloughs and economic downturn since February 2020. The perils of sport and employment status is a debate that has been brought to my attention by the Varnish case and made ever more relevant by the post-Covid-19 lockdown situation. It opens up a number of governance, ethical and economic questions facing the entire Sport sector in the UK. More people are beginning to challenge the law and organisations. For example, Unite have launched a campaign to support ‘exploited’ workers in such Leisure Centres.

The campaign by Unite further illustrates that in the current system, not everyone is protected. There are structural and cultural factors in the Sport sector, e.g. the rise of the ‘gig worker’ or the furlough status, leading to further precarious positions. I am entering the realm of leisure delivery in an upcoming project, where I will do a horizon scan of the value and challenges for the organisation. The Varnish case, and debate about the ‘gig economy’ in pieces cited here have brought home to me the complexity of employment faced by organisations and individuals in the Sport sector. I concur with Balmelli that traditional views of what it means to be an ‘employee’ need to be reassessed. Moreover, reassessed across multiple communities who work in the Sport sector and who are negotiating the post-Covid-19 lockdown situation.

VPos

Further reading: Hill, A. (2019). When work is not work but an ‘opportunity’ and ‘platform’. FT.Com

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