LONDON: In 2008, Jess Varnish, then a 17-year-old cyclist, told the Birmingham Mail she was training six days a week, twice a day. It was “more than just a hobby”, she said.
More than a hobby, but not quite work, according to an employment tribunal judgment last week.
Ms Varnish, who went on to compete at the highest level for the British team, had argued she was an employee or worker at the organisations that fund and run elite cycling.
She may yet appeal, but for now she cannot go on to sue for discrimination and unfair dismissal, which she claims she suffered when dropped from the national team in 2016. No employer, no employee rights.
The grey area where Ms Varnish did her non-work can seem as confusing to outsiders as the rules of track cycle events.
The former Olympian finds herself on the same bike as Deliveroo riders, who lost a UK case last year that they were workers, entitled to collective bargaining rights. Elsewhere in the gig economy, Uber is appealing against a decision that its UK drivers are not self-employed freelancers but workers, with rights to holiday pay and the minimum wage.
Ms Varnish’s claims are mixed up with the politics of team selection and her parallel complaints about the sometimes brutal coaching regime at British Cycling and what other staff and athletes said was a “culture of fear”. Her criticism has helped bring about changes at the organisation.
But the legal debate about “work” and “employment” exposes realities about gig work, about what those with more conventional jobs do, and about how managers make them do it.
WHEN WORK LOOKS LIKE PLAY
Take Ms Varnish’s “hobby”. Her teenage coaching regime became more intense as she advanced.
Top cyclists had to follow a rigorous training schedule, seek permission for absence, wear team kit and carry out media duties. Coaches told them what to eat and when.
The tribunal judge agreed this constituted a “high level of control”, which fulfilled one test of whether Ms Varnish was an employee.
By comparison, control of software engineers, lawyers, consultants, marketing and sales teams and other white-collar employees is largely covert. Managers of highly skilled people offer them a high degree of independence, repaid with staff goodwill and extra effort, often after hours.
Autonomy is seen as a prerequisite for fulfilment at work. Everywhere, jobseekers are urged to find work that they enjoy doing.
Work, in other words, has become oddly like play, right down to the infantilisation of office decor and benefits, from beanbags to bake-offs.
Play, meanwhile, looks more and more like hard work. If you doubt this, go to the gym and watch the Varnish-style suffering some people like to put themselves through in their spare time.
Instruments of control lie just below the surface, though. As more gig economy practices bleed into full-time work, goodwill will stretch very thin.
One task of managers, who these days often style themselves as coaches, is to make sure team members don’t see the iron fist clenched inside their velvet glove.
Yet clearly managers must also make sure something the law calls “mutuality of obligation” is observed: Broadly, the employer has to provide work, but the worker has to carry it out, on terms set by the employer.
Sweetening the employees’ side of this bargain is one way to achieve this. But managers have to act to bring staff back in line.
Most stop short of the methods used by the Chinese company recently filmed forcing employees to crawl along a road as punishment for missing targets. Move down the wage scale to factories, call centres and warehouses, though, and the iron fist becomes more visible.
WHEN WORK IS NOT WORK
One reason Ms Varnish’s case failed was that she was free to leave the elite training programme. Escaping the implicit harness of paid work is one reason employees go freelance.
A new survey by Eden McCallum, which co-ordinates a network of independent management consultants, shows the ability to choose when and where to work, and what work to do, is one of the greatest contributors to gig consultants’ satisfaction.
More people will choose that route, or be forced down it, as traditional companies evolve into looser networks.
As a result, there will be more cases testing the line between employee and freelancer. Here is Joe McMorrow of Pinsent Masons, the law firm which acted for grant-giving body UK Sport against Ms Varnish’s claim for employment status:
What we’re really saying is that this isn’t work at all: It’s an opportunity and a platform to go on and be successful.
That sounds a little like the pitch some companies make to recruits or to aspiring freelancers who want to work with them. The freedom and fluidity of a looser relationship are attractive.
But it makes sense for would-be champions to try to secure their rights, especially when there isn’t even a medal on offer at the end of the long working day.
© 2019 The Financial Times Ltd.