In HMRC v Professional Game Match Officials [2021] EWCA Civ1370, the Court of Appeal concluded that the First Tier Tribunal (FTT) and Upper Tribunal (UT) had both erred in law when considering the control and mutuality tests in deciding whether football referees were employees. It refused to decide the employment status of the referees and instead remitted the case back to the FTT. 

  • The referees were engaged by Professional Game Match Officials Limited (PGMOL) under an Overarching Contract covering the whole football season and Individual Contracts.
  • They were all part-time referees paid only when they had attended a match.
  • The referee has total control of the pitch subject to FA regulations. Off the field, PGMOL rules apply including rules about promoting products and services, Match Day Procedures, procedures for declaring interests, an agreement to 'abide by' PGMOLs fitness and training protocol, annual fitness tests and a requirement to sign a code of conduct.
  • HMRC challenged the referees’ Employment Status and raised Regulation 80 determinations for PAYE and section 8 decisions for Class 1 National Insurance Contributions (NICs) on the basis that the referees were employees. PGMOL appealed.
  • The First Tier Tribunal 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 control in the Individual Contracts, such that they were not contracts of employment either.

The Upper Tribunal concluded that that the FTT had correctly decided that there was insufficient evidence of Mutuality of Obligation and dismissed HMRC’s appeal.

The Court of Appeal allowed HMRC’s appeal:

On Mutuality of Obligation

  • The fact that either side could pull out of the contract before a game did not mean that there was no Mutuality of Obligation. The FTT had erred in law here and the UT had erred in upholding this conclusion.
  • The UT also erred in law in concluding:
    • That the individual contracts could not be contracts of employment if they merely provided for a worker to be paid for the work he did.
    • That the statements of principle as to what is necessary to establish Mutuality of Obligation sufficient to create an employment relationship are the same whether they are being applied to an overarching contract or to individual contracts.

On Control

  • There were many features of the relationship between PGMOL and the referees which could show that there was a sufficient framework of control, particularly within the terms of the overarching contract, for example:
    • PGMOL's power to promote and demote referees.
    • The provisions about promoting products and services.
    • The Match Day Procedures.
    • The procedure for declaring interests.
    • The referees’ agreement to 'abide by' the fitness and training protocol and annual fitness tests.
    • The requirement to sign and agree to comply with the Code of Conduct.
    • PGMOL's disciplinary role in relation to referees, which sits alongside that of the FA.

The Court remitted the case back to the FTT for it to consider, based on its findings of fact, whether there was sufficient Mutuality of Obligation and control in the individual contracts for them to be contracts of employment, saying that it would not be appropriate for the Court of Appeal to make those assessments as they are best made by a specialist fact-finding tribunal and not an appellate Court.

The case has been appealed to the Supreme Court and a decision is pending.

Useful guides on this topic

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)
Why is it important to check my employment status? What tests should I use? What is the recent caselaw?

Employment status: Mutuality of Obligation 
What is mutuality of obligation? Mutuality of obligations has two components.

Employment status & detailed checklist
Why is it important to check my employment status? What tests should I use? What is the recent case law?

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 

UT decision: HMRC v Professional Game Match Officials Limited [2020] UKUT 0147

External link

HMRC v Professional Game Match Officials [2021] EWCA Civ1370 

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