Inn the Field of Play - November 2016: Discrimination in the velodrome: lessons from the Shane Sutton case

This case, whilst bringing more unwanted publicity for the governing body of Britain's most successful Olympic sport of recent times, also highlights a number of important points for employers and governing bodies ("NGB"s) alike. In particular:

• equality policies must be properly implemented for a culture of equality to prevail and for employers/NGBs to rely on the "all reasonable steps" defence to discrimination claims; and
• grievance/complaint investigations should follow the principles of natural justice (and ACAS guidance where applicable) or risk legal challenge.

Success at all costs?

The success of British cyclists over the past dozen years is well documented. Team GB have won 20 out of 30 cycling gold medals available from the last three Olympics. Chris Froome has won the Tour de France three times. Bradley Wiggins is a world record holder. Laura Trott is Britain's most decorated female Olympian ever. The list goes on. But has all this success come at the expense of a culture of fairness and equality in the elite echelons of the sport?

After last week's verdict against Shane Sutton, Jess Varnish commented: "I hope that British Cycling can use this investigation as a way to improve and create a better environment for the Great Britain team". In its statement BC said "the Board wishes to put on record its sincere regret that this happened". The investigation report itself, which may never be published, will nevertheless inform the ongoing independent UK Sport-led review into the culture of BC's elite performance programme, which is due to announce its findings in the next few weeks.

Cycling is a sport in which elite success is attributed to so-called "marginal gains". Such gains are achieved through coach-led attention to detail, sports science and intense training regimes. But when do coaches overstep the rules of acceptable practice? When do they become bullies? Olympic great Chris Hoy has said of Sutton: he is "so intense that there are times that the only thing you can do is fall out with him. Half the time you want to throttle the guy and the other half you are trying to get into his good books". Plenty of prominent cyclists have come out in support of Sutton, praising his ruthless motivational style. Others, including Olympic gold medallists Victoria Pendleton and Nicole Cooke, have suggested his comments to Varnish are just the tip of an institutional iceberg of discrimination in the elite coaching programme. We will have to wait for UK Sport's verdict.

The Law

Whether or not an athlete appreciates or benefits from a forceful coaching style is a subjective question; whether or not a coach's actions are discriminatory, however, is an objective legal one.

The Equality Act 2010 amalgamated decades of discrimination law into a single, pervasive statute. It binds employers, public authorities, service providers and associations and prohibits unlawful acts of discrimination and harassment in respect of certain "protected characteristics". Under section 11 of the Act it is unlawful to discriminate against or harass someone on the grounds of their sex – one such "protected characteristic". Under section 109, an employer (such as BC) can be held vicariously liable for the actions of its employee (such as Sutton): anything done by an employee in the course of his or her employment is treated as having also been done by the employer regardless of whether the employee's acts were done with the employer's knowledge or approval. Varnish may have standing to bring a claim against BC in respect of Sutton's actions under section 29 (if BC was a "service provider" to Varnish). She could also potentially bring a claim against Sutton personally, joining him as a second respondent, for unlawful acts committed in the course of his employment whether or not BC has a defence against liability (see paragraph 3.35 of the Equality Act 2010 Code of Practice for Services, Public Functions and Associations).

In the present case, BC found that Sutton's comments to Varnish were "inappropriate" and "discriminatory". We do not know what in fact was said, but if BC concluded that Sutton made the comments which have been reported in the press, this may amount to harassment under section 26 of the Act. Under this section "a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic" (i.e. Varnish being female) and "the conduct has the purpose or effect of either violating B's dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for B". The comments may also amount to evidence of direct discrimination if Varnish can show that she was subjected to "less favourable treatment" than Sutton would have given, or did give, to Varnish's male colleagues.

BC's statement says it was Sutton's "language" which was discriminatory; it does not say that any of his actions were. BC has previously upheld its (for which read Sutton's) decision to drop Varnish from the GB team in April, ahead of the Rio Olympics. It was that omission which is alleged to have encouraged Varnish to go public with her complaints about Sutton. Whilst team selection decisions could conceivably be discriminatory as regards certain "protected characteristics" (for instance age or race), where sports, such as cycling, are separated into men's and women's teams, team selection will not be discriminatory on the grounds of sex. If BC found that Sutton told Varnish she was "too old" (as has been reported) it must have been satisfied that either this was not in fact a reason for his decision to drop her from the team (otherwise this may have amounted to "less favourable treatment" for the purposes of direct age discrimination) or that any less favourable treatment could be objectively justified. Age discrimination is the only protected characteristic for which direct discrimination is capable of being defended using an objective justification (that the discriminatory conduct was a proportionate means of pursuing a legitimate aim). Sutton, who denies using discriminatory language, maintains that Varnish was dropped for performance reasons alone; it seems that BC agrees.

Equality policies and implementation

As with any employer and NGB following best practice, BC has in place an equality policy which applies to its employees and members. BC's policy borrows heavily from the Equality Act itself when describing its legal obligations: BC "is responsible for ensuring that...no employee [or] member...receives less favourable treatment on the grounds of a protected characteristic." Its aims are admirable: BC "is fully committed to the principles and active promotion of equality of opportunity...[and] to ensuring that its employees, members and competitors are able to conduct their activities in an environment that is free from harassment, intimidation or bullying".

Drafting and adopting a policy is only half the battle, however. The real challenges lie in raising awareness and implementing the policy in order for a culture of equality and fairness to prevail. Furthermore, employers must show active efforts in this regard if they want to rely on the defence to vicarious liability for discrimination, whereby they can show they took "all reasonable steps" to prevent the employee from doing the discriminatory act. This defence allows for the acceptance that, unfortunately, there will always be prejudice of some form in the workplace or on the sports field. In Caspersz v Ministry of Defence [2006], the Employment Appeal Tribunal stressed that the mere existence of a policy is not sufficient for the defence to apply; it is essential that practical steps have been taken to implement the policy.

Practical tips for implementing an equality policy include:

• appointing a designated equality officer who is responsible for policy implementation and regular reviews (a full time role or part time role depending on the size of the organisation);
• ensuring that the policy is implemented via awareness training at all levels, recognising that an elite coaching programme is no less susceptible to discrimination than at grass roots level;
• ensuring that there is an informal way that employees or members can raise concerns at an early stage, possibly on an anonymous basis, without the requirement necessarily to bring a formal grievance; and
• ensuring that complaints are dealt with effectively through disciplinary procedures where necessary.

The investigation process

BC's equality policy states that "an employee [or] member...who believes that he/she has suffered inequitable treatment within the scope of the policy may raise the matter through the appropriate grievance procedure" and that "individuals [should] feel able to raise any grievance and... [will not be] penalised for doing so unless it is untrue and not made in good faith." In the Sutton case, Varnish, most likely a "member" but not an "employee" for the purposes of BC's policy, felt the need to go to the press so that the allegations became public. Whilst we cannot speculate on Varnish's reasons for doing so, or her timing, it would have been far less damaging for BC if the matter could have been kept strictly internal, at least until a final decision was made.

BC conducted what they have called an "internal investigation" into the allegations. It is not entirely clear which procedures were followed. Presumably Varnish's comments were treated as a grievance by a "member" of BC and the investigation was carried out in line with BC's members' grievance policy (which may well be identical to its employee grievance policy). It is worth noting, however, that the ACAS Code of Practice in relation to grievances would not apply to Varnish since she is not an employee. As Sutton resigned shortly after he was suspended pending the investigation, BC would not have needed to consider whether employment disciplinary action was necessary: in practice there was no disciplinary action it could take against Sutton as a former employee. There may be ways in which Sutton is still subject to BC's disciplinary processes other than as an employee, such as in his role as a licensed cycling coach.

Had Sutton not resigned and remained in employment, BC would have needed to consider whether disciplinary action under their employee disciplinary procedure should be taken. An employer's disciplinary procedure should follow the ACAS statutory Code of Practice and Guidance. Proceedings should involve notifying the individual of the case against them, gathering relevant evidence and allowing the individual a fair opportunity to answer the case and to put forward their own. Where practicable, different people should carry out the disciplinary investigation and hearing. Once a decision has been made, this should be communicated to the individual who should be given an opportunity to appeal to a decision maker who has not previously been involved in the matter.

Given that it took six months to conclude, BC must be confident it has made a fair decision based on all the evidence in front of it. Assuming that the investigation was carried out under BC's grievance procedure, its primary obligation would have been to Varnish to give her complaint a fair hearing; failure to do so could compound the initial allegation of discrimination. In these circumstances, however, BC would also have considered its obligations to Sutton. Because the investigation has been carried out amid considerable media attention and its main findings have been made public, the conclusions of the investigation could have a considerable impact on Sutton's reputation and career. Therefore, the investigation should have followed the common law principles of natural justice – that is the rule against bias and the right to a fair hearing – and Sutton should have been given a reasonable opportunity to understand the allegations against him and respond to them before the investigation was completed and its findings released to the media.

Since BC announced its decision, Sutton has voiced public criticism of the investigation process. He said "it would be just nice to understand how they came to this decision" and "I'm trying to understand how they've arrived at that decision given it's her word against mine". He is seeking legal advice and has recently announced he will appeal (presuming he has such rights). Judging from his determination and single-mindedness as an athlete and then coach, it seems a fair bet that Sutton will fight to clear his name.

This story highlights an ever present tension in modern elite sport: what the law dictates will quite often be at odds with a coach or athlete's desire to extract every lawful advantage to succeed on the world stage. One athlete's abuse is another's motivation. Judging what is acceptable by the typical employer/employee relationship misses the point. Elite athletes push themselves and are pushed to extremes. Knowing when an extreme has become too extreme is a difficult call to judge and can be easily lost in the pursuit of sporting glory.

 If you require further information on anything covered in this briefing please contact Charles Fursdon ([email protected] ; 020 3375 7613), Robert Lewis ([email protected] ; 020 3375 7371) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Sports page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2016