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HMRC v Professional Game Match Officials Ltd

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Our pick of this week's cases

In HMRC v Professional Game Match Officials Ltd [2020] UKUT 147 (TCC) (6 May) the Upper Tribunal (UT) found that football referees in the ‘National Group’ were not employees as there was insufficient mutuality of obligation.

The appeal related to referees on PGMOL’s National Group list who mainly officiated at matches in the FA Cup, the Championship and Leagues 1 and 2. Typically the referees officiated in their spare time, alongside other full-time employment. The First-tier Tribunal (FTT) had held (and it was common ground before the UT) that there was both an overarching annual contract between PGMOL and each referee and a series of separate individual contracts for each match for which the referee was engaged. HMRC appealed against the FTT’s conclusion that there was no mutuality of obligation outside of the individual engagements so that the overarching contracts were not contracts of employment and that there was insufficient mutuality of obligation and of control in the individual contracts so that they were also not employment contracts.

The UT held that the FTT was correct to conclude that in the absence of any obligation on PGMOL to provide at least some work (or consideration in lieu) and of any obligation on the referee to undertake at least some work, there was insufficient mutuality of obligation for the overarching contract to be a contract of employment. Although the documents relating to the contract referred to referees being ‘expected’ to do various things, including to be readily and regularly available for appointment to matches, these were not legal obligations.

Similarly, there was insufficient mutuality of obligation in the individual contracts to make them contracts of employment. Each contract ran from the Monday before the match until the post-match report was completed. The referee was entitled to withdraw from the contract without breach at any time before the match and the only contractual fetter on this right was the requirement to notify PGMOL. Equally, PGMOL was entitled to cancel the appointment of the referee and there was no contractual fetter on it doing so.

Although these decisions were sufficient to dismiss the appeal, the UT also considered the FTT’s decision on control under the individual contracts. It concluded that control requires a contractual right to direct the manner in which the worker performs their obligations and that those directions should be enforceable, i.e. that there is an effective sanction. The FTT had been wrong to find that PGMOL had no effective sanction because its only recourse was either to terminate the contract or not to offer future matches.

Read the decision.

Why it matters: The UT analysed the current status of the law relating to mutuality of obligation in some detail and confirmed that the FTT had applied the correct test. It found, however, that that FTT had applied the wrong test in determining whether control existed. There is therefore something in this case for anybody arguing about employment status, whatever side they are on, and no doubt disputes about status will continue to occupy the courts for years to come: a simple test seems as far away as ever.

Also reported this week:


Issue: 1487
Categories: Cases