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Are referees employees? The appeal 

Here is something a bit different from the recent Covid-19 news, but significant for those advising on employment status, particularly IR35. In 2018, I wrote about the First-Tier Tax Tribunal’s decision to determine a specific group of referees as self-employed for tax purposes in this briefing.

On 6 May 2020, following HMRC’s appeal, the Upper Tax Tribunal handed down its judgment in the ongoing saga between HMRC and the Professional Game Match Officials Limited (PGMOL).  Like in 2018, the Upper Tribunal maintained its stance that these referees are not employees for tax purposes.

This case also clarifies the scope of the “mutuality of obligation” principle which is one of the key considerations in determining an individual’s employment status for IR35, other tax and employment rights.  Most employee/employer relationships will have an obligation on the employer to offer work to the employee and for the employee to personally do the work and be paid for it.  In this case, the Tribunal clarified the “required content of the mutual obligations”.

Background

This case involved part-time referees that are engaged by PGMOL to primarily officiate matches in Leagues 1 and 2 of the English Football League.  They are referred to as “National Group” referees and are distinct from full-time “Select Group” referees who have employment contracts and referee in the English Premier League.

HMRC made determinations in respect of payments made to the referees by PGMOL in the tax years 2014-15 and 2015-16 on the basis that PGMOL was the employer of these referees.  PGMOL appealed the determinations and the First-Tier Tribunal held that the referees were not employed under contracts of service during the relevant tax years.  HMRC appealed this decision.

Appeal

HMRC had three core grounds of appeal:

  • The First-Tier Tribunal failed to take into account the mutuality of obligation in the individual assignments (i.e. the agreements in relation to each specific match for which that referee was engaged)
  • It failed to take into account the sufficiency of control in the individual assignments; and
  • It failed to take into account whether there was the necessary mutuality of obligation in the overarching contract (i.e. the annual contract between PGMOL and each of the referees).

Decision

The Tribunal rejected HMRC’s contention that mutuality of obligation is relevant only to the questions of whether there is a contract at all, and if there is, whether it contains an obligation to provide services personally. The Tribunal held that mutuality of obligation was not only relevant to determining whether there was a contract at all, but is a critical element in delineating a contract of service from a contract for services i.e. mutuality of obligation is an essential requirement in categorising a contract as one of employment.

Crucially, the Tribunal then went further to determine the content of the mutual obligations:

  • The minimum requirement for an employee is an obligation to perform at least some work and an obligation to do so personally. It was held that this is consistent with such an obligation that the employee can in some circumstances refuse to work, without breaching the contract, but it cannot never turn up for work and not breach the contract.
  • The minimum requirement on an employer is an obligation to provide work and in the absence of work, provide a retainer or some form of consideration. It was held that there could not be an employment contract if the only obligation on the employer is to pay for work if and when it is actually done.
  • Finally, these obligations must subsist throughout the whole period of the contract.

As PGMOL could cancel an appointment without contractual limit and without committing a breach of breach of contract, and the referee could decide not to take up the appointment (for reasons other than injury or illness), there was insufficient mutuality of obligation, and therefore, they could not be deemed to be employees.

Comment

There are two significant outcomes in this case.  The first, National Group referees are not employees.  This brings to an end years of uncertainty as to their status and will be a relief to all National Group referees if HMRC investigates their income in the upcoming tax years.

Secondly, and perhaps more significantly (certainly for practitioners that advise on IR35), the Tribunal analysed the “go-to” cases on determining employment status and sought to clarify the scope and significance of mutuality of obligation by setting out guidelines for the “minimum requirement” of employers’ and employees’ mutual obligations.

If you require advice regarding employment status or employment-related issues more generally, please do not hesitate to contact Safwan Afridi.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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