In HMRC v Professional Game Match Officials Limited [2020] UKUT 0147 (TCC) the Upper Tribunal found that certain football match referees were self-employed and dismissed HMRC’s arguments on mutuality of obligation.

  • The referees were engaged by Professional Game Match Officials Limited (PGMOL) under the terms of an Overarching Contract and Individual Contracts in 2014-15 and 2015-16.
  • HMRC challenged their Employment Status for tax and in deciding that the referees were employees raised Regulation 80 determinations for PAYE and decisions under section 8 of the Social Security (Transfer of 25 Functions) Act 1999 in respect of Class 1 National Insurance Contributions (NICs).
  • On appeal to the First Tier Tribunal (FTT), the FTT found that the referees were not guaranteed any match fixtures, they were only paid for the fixtures that they did attend and they were not subject to any sanction if they failed to show up for a match.
  • The FTT concluded that:
    • There was no Mutuality of Obligation outside individual engagements and, on that basis, the Overarching Contract was not a contract of employment.
    • There was an insufficiency of mutuality of obligation and insufficiency of control in the Individual contracts, such that they also were not contracts of employment.

HMRC appealed against that decision on the basis that the FTT had erred in law and/or took into account irrelevant considerations and failed to take into account relevant considerations and/or reached a perverse conclusion in making those findings.

The UT rejected HMRC’s contention that the requirement that there be mutuality of obligation is irrelevant to the categorisation of the contract as one of employment or one for services, beyond merely requiring that the services be performed personally.

The UT derived the following minimum propositions:

  • Employee obligations: the minimum requirement is to perform at least some work and to do so personally. It is consistent with such an obligation that the employee can in some circumstances refuse to work, without breaching the contract. It is inconsistent with that obligation, however, if the employee can, without breaching the contract, decide never to turn up for work.
  • Employer obligations: to provide work or, in the alternative, a retainer or some form of consideration (which need not necessarily be pecuniary) in the absence of work. We think it is insufficient to constitute an employment contract if the only obligation on the employer is to pay for work if and when it is actually done.
  • In both cases, the obligations must subsist throughout the whole period of the contract.

The UT concluded that that the FTT had correctly decided that there was insufficient evidence of mutuality of obligation.

In terms of control, the UT considered that the FTT erred in considering the extent of PGMOL’s control over referees. Although PGMOL could not control the referees' actions during a match, it could exert control in terms of their overall appointment. In view of its conclusion in relation to the lack of mutuality of obligations, the UT considered it unnecessary either to remit the case to the FTT.

HMRC’s appeal was dismissed


The decision contains useful summaries of cases on both mutuality of obligation and control.


PAYE Regulation 80 & NICs determinations (subscribers)
When can HMRC assess an employer or an employee for unpaid PAYE and NICs? Who is assessed and what are the conditions?

Employment status (subscribers)
The employment status of an individual worker depends on whether the individual is engaged by the engager under a 'contract of service', or a 'contract for services'. 

Mutuality of Obligations (subscribers)
What is mutuality of obligation? Mutuality of obligations has two components.

Employment status checklist
An employer (including an Employment Agency) needs to know if a worker is an employee so that they can fulfil their obligations under employment law and for tax.

Check Employment Status for Tax (CEST)
HMRC's online employment status tool, CEST 'Check Employment Status for Tax', is for workers, agencies and engagers in order to determine whether a worker is employed or self-employed for tax purposes.

FTT decision: Professional Game Match Officials Limited v HMRC [2018] TC06698 

External links

HMRC v Professional Game Match Officials Limited [2020] UKUT 0147 (TCC)