Referees' employment status case sheds light on important elements of contract of employment

Tax tribunal decision offers helpful summary of the law on employment status.

The law concerning the definition of employment status is complex and nuanced, and there is a risk that employers seeking to engage staff as independent contractors can inadvertently enter into an employer-employee relationship, particularly if there is a significant degree of oversight by the employer as to how the job is carried out.

A recent case from the Upper Tax Tribunal (‘UTT’) has considered this complicated area in relation to football referees who were engaged by Professional Game Match Officials Limited ('PGMOL'). The question in this case was whether the referees were in employment for tax purposes, rather than deciding whether they were workers or employees for employment law purposes (e.g. to establish employment rights or protections).

The case focussed on two key concepts for the purposes of determining an employment relationship. The first, “mutuality of obligation”, is a necessary component of an employment relationship because an employer must be obliged to provide work to an employee and the employee must be obliged to perform the work assigned to them. The issue of mutuality of obligation is complicated further by the fact that it is also required to simply establish a contract, but it is the degree to which mutuality of obligation exists in the contract to provide and perform work which determines if an employment relationship is created.

The second key concept considered is that an employee must be subject to a “sufficient degree of control” by an employer as to how, when and where they undertake their duties.

Without these elements of the relationship, the referees would be deemed to be independent contractors.

Case details: HMRC v Professional Game Match Officials Limited [2020]

Background and initial decision

PGMOL oversees the management and administration of refereeing of professional football. Via various contractual arrangements PGMOL engages referees to officiate at matches, primarily in Leagues 1 and 2 of the Football League, but also in the Championship and FA Cup, as well as providing officials to the Premier League. These referees were known as "national group" referees, who undertook their duties in their spare time, typically alongside other full-time employment.

HMRC determined that the relationship between the officials and PGMOL was that of an employer and employee and sought to recover PAYE and national insurance contributions from PGMOL on this basis. PGMOL appealed this determination by HMRC to the tax tribunal.

The First Tier Tax Tribunal (‘FTT’) found that there was an overarching contract between PGMOL and each of the national group of referees, and separate contracts between PGMOL and each referee in relation to specific matches for which they were engaged to officiate. However, the FTT concluded that that there was insufficient mutuality of obligation between the parties and also insufficient control exercised by PGMOL over the referees to establish an employment relationship (for reasons explored below). Accordingly the referees were independent contractors who were not in employment for tax purposes and no PAYE or national insurance contributions were due from PGMOL.

HMRC appealed to the Upper Tribunal.

Appeal

Reviewing the elements of the decision relating to mutuality of obligation, the UTT upheld the decision of the FTT that the overarching contracts did not include an obligation for PGMOL to provide work or on match officials to accept work that was offered. This included FTT’s finding that the referees and PGMOL were able to withdraw from a specific match engagement for any reason without breaching the contract. Accordingly, the UTT agreed that the FTT was entitled to find that there was insufficient mutuality of obligation to create an employment relationship.

However, regarding control the UTT found that the FTT had erred in its conclusion about the extent to which PGMOL had control over the overarching contract with match officials. It found that PGMOL did have an enforceable contractual right to “step in” and remove a match official before a match began. As a result, the UTT found that the FTT had given insufficient weighting to the total contractual control exercised by PGMOL in respect of the individual match contracts.

It is worth noting that the FTT concluded that PGMOL had an insufficient contractual right of control during individual engagements because, amongst other factors, the match officials had full authority over the performance of their job on match days and their decisions within games were final. In addition, if any professional issues arose it was the Football Association which dealt with regulatory breaches by the officials at matches or elsewhere.

However, because the UTT had upheld the FTT’s decision in respect of mutuality of obligation, it did not overturn the decision.

It is also worth noting that the UTT was not convinced by HMRC's argument on appeal that the FTT had not sufficiently considered the “real world” realities of the working arrangements when coming to a conclusion about the degree and extent of the mutuality of obligation and control exercised in the contracts. The UTT found that the FTT had considered relevant factors such as that the motivations of match officials to officiate at the highest levels possible and the impact this had on their compliance with various non-binding expectations set by the PGMOL (e.g. fitness training), when concluding that there was insufficient mutuality of obligation and control to create an employment contract.

Conclusion

This case provides a very useful consideration of the case law around employment status through the lens of the UK’s tax tribunals. In particular, it helps to highlight that sufficient mutuality of obligation to create a contract does not of itself mean there is enough mutuality of obligation to create an employment contract. Likewise, the consideration in this case of expectations in a contractual arrangement not necessarily amounting to contractual obligations in the “real world” indicates that it is possible for parties to draft contracts with some indication as to their specific performance without creating the control elements of an employment relationship.

However, it is worth noting that employment status is still heavily fact dependent, and so the wider application of this outcome to other workers and professions is likely to be limited. Indeed the decisions in this case do not mean that the same conclusions would be arrived at by an Employment Tribunal, if it were asked to consider the employment status of an individual seeking the benefits and protections of being an employee.

This decision also highlights that employers face risks from two separate distinct sources when considering claims and actions related to employment status – the first being individuals seeking to establish their employment status at a tribunal, and the second an inquisitorial HMRC seeking to recover National Insurance and tax contributions.