Are referees employees?
No – according to the First Tier Tax Tribunal.
HMRC argued that the Professional Game Match Officials Limited (PGMOL) was the employer of a group of football referees, and therefore there was income tax and NICS due.
The principal issue in the appeal was whether these referees were in employment relationships with PGMOL. PGMOL said that not only were the referees self-employed, but there was in fact no contract between it and the referees at all.
PGMOL provides referees and other match officials for matches in league competitions and the FA Cup. PGMOL employs a number of referees under full-time written employment contracts who at the time predominately refereed Premier League matches. The referees to which this appeal related undertook refereeing in their spare time, typically alongside other full-time employment. The appeal related to payments to these individuals, mainly in respect of match fees and expenses. These referees primarily refereed League 1 and 2 matches.
The tribunal considered the following:
- Mutuality of obligation – i.e. some level of obligation to perform work personally and pay remuneration is an ‘irreducible minimum’ of a contract of service.
- Control – ‘a sufficient framework of control’ must exist in the sense of ‘ultimate authority’, more than day-to-day control in practice.
- Anything to the contrary – if the first two are satisfied, there will be a contract of employment unless other elements of the contract are inconsistent with that conclusion
PGMOL’s principal submission was that there was no contractual relationship between it and the referees. Instead, PGMOL simply managed the interactions between them and the competitions. There was no written or oral contract between PGMOL and the referees. The controls on the referees were imposed by the Football Association’s regulations and the competition’s rules, not by PGMOL. The only sanction available to PGMOL was to not invite referees to officiate future matches.
The control that existed was regulatory control rather than control resting with PGMOL. Requirements such as fitness and the need to remain impartial and independent were necessary characteristics of the referee’s role and did not reflect control by PGMOL. The Laws of the Game made it clear that it is the referees who have full authority. PGMOL argued that ‘refereeing was a passion or hobby and their commitment to it was not an incident of employment but instead of their enjoyment and desire to develop.’
HMRC’s case was that individual engagements to officiate at matches were contracts of employment, and that these existed in the context of an overarching or umbrella contract between PGMOL and the referee for the whole season, which was also a contract of employment. Even if this was not right, contracts had to be implied on the basis that PGMOL was engaging referees to officiate for a fee.
HMRC relied on the appeal decision in the recent Pimlico Plumbers case where the judge held that regularly offering and accepting work might weigh in favour of a conclusion that the individual had ‘at least’ worker status. HMRC submitted that the expectation of being offered work, resulting from the practice over a period of time, can constitute a legal obligation to provide work or perform work provided. The requirement in the Code of Practice to be readily and regularly available for appointment to matches was in practice more than an ‘expectation’.
HMRC added that the level of control exercised during matches was the same for Premier League referees who were accepted as being employed, and that the degree of continuity in the relationship was significant.
The tribunal concluded that there was both an overarching contract covering the season, and individual contracts for each match between the PGMOL and the referees. However, it was held that the overarching contract was not a contract of service because there was no mutuality of obligation outside the individual engagements.
It was also held that there was insufficient mutuality of obligation and control in the individual engagements to amount to employment, even though the level of integration, hours worked, the fact the referees could not obviously be described to be in business on their own account and the fact PGMOL were their only or primary paymaster in their refereeing activities, suggest an employment relationship. It concluded that individual appointments to matches were engagements to perform the task of officiating the match for a fee, and not contracts of service.
The conclusion: the referees were not employed under contracts of service during the periods under appeal and PGMOL’s appeal was allowed.
Interestingly, for the 2017-18 season onwards (outside of the period covered by the appeal), PGMOL agreed to worker status for these referees for employment law purposes, as a result, they started to receive pension benefits and holiday and sick pay.
Importance of employment status
This case serves as a further reminder of the murky world of employment status. Regardless of what the physical contract may say, a tribunal will always look behind it to determine the actual relationship between the parties. This decision highlights that each case will turn on its own specific facts. This applies to ‘umbrella contracts’ and ‘gig-by-gig’ arrangements.
This briefing is for guidance purposes only. RadcliffesLeBrasseur 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.