In Professional Game Match Officials Limited v HMRC [2018] TC06698, the First Tier Tribunal (FTT) found that football referees were self-employed. There was insufficient mutuality of obligation and control to amount to employment, even though the level of integration, hours worked and the absence of being business on their own account suggested an employment relationship.
To determine the Employment status of an individual worker it is necessary:
- to consider whether the individual is engaged by the engager:
- under a 'contract of service' (employment), or
- a 'contract for services' (self-employment).
A contract of service (employment) will often have the following characteristics:
- Control: the engager directs the worker in a variety of different ways.
- Personal service/substitution: an employee gives his personal service and is unlikely to supply a substitute.
- Other factors: an employee is unlikely to own significant assets, take financial risk or have the opportunity to profit above an employer-provided bonus, share or incentive scheme.
Professional Game Match Officials Limited (PGMOL) is a not-for-profit company limited by guarantee and funded by its members, The Football Association Limited (the FA), The Football Association Premier League Limited and The Football League Limited.
- PGMOL provides referees and other match officials for matches in the Premier League, the FA Cup and the English Football League (EFL) and controls the National List of level 1 referees.
- The referees here undertook refereeing in their spare time, often alongside full-time employment and were level 1 referees. Achieving level 1 status means meeting many strict requirements including fitness tests. It is subject to continuous assessment, monitored by PGMOL.
- PGMOL offers non-compulsory training sessions for which it pays a nominal attendance allowance, employs coaches for them, runs a pre-season conference, offers private medical insurance and provides kits and suits with PGMOL ties to be worn to and from matches.
- Referees can accept or decline each appointment offered to them, when they fail to attend a match they are not paid. They do not have to provide an invoice to get paid.
- Where a substitution is required e.g. due to media attention PGMOL decides upon this, the referee cannot provide a substitute.
- There is a pot of funds distributed on a merit/performance-related basis each season.
- PGMOL sets match fees with no extras for preparation, post-match reports or travel time.
- Documents inviting new referees to join the list thereby engaging them, state they must, amongst other things:
- Sign a code of conduct.
- Decline to act where there is a conflict of interest.
- Carry out 'all instructions, procedures and directives relating to Match Officials' issued by PGMOL.
- The referee has total control on the pitch subject to FA regulations.
- HMRC assessed PGMOL to PAYE and National Insurance Contributions (NICs) totalling £583,874 for 2014/15 and 2015/16 as the employer of the referees. PGMOL appealed.
The FTT allowed the appeal:
- PGMOL and the referees entered into annual 'overarching' contracts plus match specific engagements but there was no Mutuality of obligation outside individual engagements. The overarching contracts were not contracts of service.
- The individual engagements were also not contracts of service.
- PGMOL could withdraw an appointment/referees could withdraw from a match at any time.
- PGMOL did not have sufficient control. They could not, for example, replace a referee at half time and only the FA can deal with breaches of regulations.
- The referees supplied some of their own equipment at their own expense. The profits they made could increase with the work done and they had full responsibility for managing their own fitness and for pre-match preparation.
This judge commented that this was an unusual situation. There was no need for any legal obligation to accept work. The referees were highly motivated individuals, passionate about their work, keen to referee at the highest level, who wished to make themselves available as much as possible. The decision may, therefore, prove specific to its facts.
UPDATE: HMRC appealed this decision to the Upper Tribunal (UT) in 2020. The UT upheld the FTT's decision.
Links
Employment Status & detailed checklist
Employment status: Mutuality of obligation
External links
Professional Game Match Officials Limited v HMRC [2018] TC06698