1/ Jess Varnish has lost her employment/worker status appeal against British Cycling. You can read about it on all good British news websites, but I guarantee none will focus on the real excitement - the clarification of the work/wage bargain. #ukemplaw assets.publishing.service.gov.uk/media/5f0c4cdf…
2/ You'll know the facts. Jess is a superb track cycling sprinter who'd been destined for great things since childhood & had won a host of medals at the Worlds, Euros & Commonwealth Games. She was hoping to add to that haul at the Rio Olympics in 2016.
3/ As with all of the top cyclist performers, Jess had signed annual Athlete Agreements with British Cycling, which allowed her receive various services & equipment provision & to apply for a National Lottery grant in return for training, competing & associated commitments.
4/ In March 2016, Jess's Athlete Agreement was terminated in accordance with its terms. Her Olympic dreams were broken. She then brought an ET claim under the ERA & EqA (keen sports followers will recall her arguments with coach Shane Sutton & her allegations of his sexism).
5/ The ET considered as a preliminary issue questions of employment & worker status, both under the ERA & the EqA. The Tribunal found against Jess under all tests. To put it far too simply, the ET considered British Cycling to provide services to her rather than vice versa.
6/ Jess appealed to the EAT, solely on the ERA question. The EAT has now also found against her, holding the ET entitled to reach its decision on employment status. Although the appeal was against both employment & limb (b) worker status, the judgment concentrates on the former.
7/ Central to the appeal is what constitutes mutuality of obligation & how important that mutuality is. You'll know that the starting point in looking at mutuality is Ready Mixed Concrete's work-wage bargain. 
8/ The question has often been asked how widely that is set. Is it restricted to circumstances where the employer agrees to pay? What is the width of "or other remuneration"?
9/ The widest definition commonly relied upon is that in Cotswold Development v Williams, in which Langstaff J at para 55, held that it includes not only an obligation to pay for work done but also an obligation to provide work.
10/ The EAT adopted that test, whilst holding it did not undermine the 1st part of the Ready Mixed Concrete test.
11/ Having confirmed the wider reading of mutuality, the EAT went on to suggest ETs ignore mutuality save in cases of intermittent working, & that they are better off focusing on whether the contractual obligations are of the type which give rise to a contract of employment.
12/ As the EAT put it a little earlier in their judgment, that exercise is one of judgment for the ET, stepping back & analysing the whole picture rather than counting up the ticks on a list of factors.
13/ The EAT considered the ET had applied the correct test & reached an appropriate conclusion. In doing so, it considered old case law about training footballers on the 1 side & an analogy about uni students working hard to achieve success on the other, but found neither useful.
14/ Whilst Jess trained hard, relinquished autonomy over training & was provided a host of non-monetary benefits by British Cycling, the EAT upheld the ET's conclusion that there was no employment contract & that the contract was instead 1 where services were provided to her.
15/ In response to arguments that the ET had looked too narrowly at 'remuneration' the EAT found it unnatural to view support given to Jess to train/compete as itself amounting to remuneration.
16/ It was also held appropriate for the ET to find that an option not to take up a benefit pointed away from it being remuneration. That may depend on context but was not an inappropriate evaluative factor.
17/ In obiter (I think), the EAT considered the scope of use of the dominant purpose test, holding (reliant on comment in Redcat) that it was not exclusively useful for determination of the line between limb (b) workers & independent contractors, but also on employee status.
18/ Once the EAT had reached its conclusions on employee status, the worker status & irrationality grounds easily fell away. Given that there was no performance of services by Jess for British Cycling, the 1st stage of the limb (b) test wasn't passed.
19/ In reaching that conclusion on worker status, the EAT left purposely hanging for another case the interesting question of whether mutuality of obligations has any part to play in a limb (b) worker case. A nettle to be grasped no doubt at some point in the future.
20/ So there we have it. Olympic dreams dashed. Employment status dreams dashed. Opportunities still to qualify via the repechage of a 2nd appeal but I suspect that the finish line may have been reached & that Jess Varnish may be destined for the silver medal. #ukemplaw
