Bullying and discrimination in elite sport: lessons for sports bodies from the Shane Sutton case

After a six-month internal investigation, it was announced at the end of October that British Cycling (“BC”) had upheld the allegation that former technical director Shane Sutton “used inappropriate and discriminatory language” towards former European team sprint champion Jess Varnish.¹ Sutton had resigned in April having been suspended pending the investigation.²

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 justice³ (and the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice⁴ where applicable) or risk legal challenge.

This article examines:

• the culture at British Cycling – should success come at all costs; when does forceful coaching become bullying; and the on-going UK Sport-led independent review;
  
  
• the law on bullying and discrimination – what actions might Jess Varnish be able to bring and against whom?;
  
  
• equality policies and their implementation – practical tips for sports organisations; and
  
  
• British Cycling’s investigation into Shane Sutton – analysis and comment on the process and potential next steps.

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 the 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”.⁵ 

In its statement BC said:

“the Board wishes to put on record its sincere regret that this happened”.⁶

The investigation report itself, which may never be published, will nevertheless inform the separate ongoing UK Sport-led review into the culture of BC’s elite performance programme.⁷ The independent review was announced on 29 April 2016 to investigate the culture at BC. It includes, but is not limited to, an investigation into all forms of discrimination and bullying, arising out of (in particular) Jess Varnish’s complaints and accusations that Sutton referred to other athletes as "gimps" and "wobblies".⁸ The review 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”⁹. 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”.¹⁰

Plenty of prominent cyclists have come out in support of Sutton, praising his ruthless motivational style.¹¹ 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.¹² We will have to wait for UK Sport’s verdict.

The law on bullying and discrimination

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”; and
  
  
• under section 109, an employer (such as BC) can be held vicariously liable¹³ 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,¹⁴ 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).¹⁵