Professional Game Match Officials – football referees not employed for tax purposes

In Professional Game Match Officials Ltd v HMRC [2018] UKFTT 528, the First-tier Tribunal (FTT) has held that football referees and other match day officials were not employees of Professional Game Match Officials Ltd (PGMOL).

Background

PGMOL is a joint venture run on a "not-for-profit" basis, with three 'members', being the Football Association, the Premier League and the English Football League. PGMOL's role is to provide referees and other officials for matches in the most significant national football competitions. It also organises courses, conferences and training for these officials.

The appeal in question related only to payments of match fees and expenses made by PGMOL to individuals in the so-called "National Group" of elite officials. This is, effectively, the group of elite football officials just below the group who routinely officiate at Premier League matches. The Premier League officials are employed by PGMOL under full-time written contracts of employment.

The National Group of referees and other officials primarily refereed matches in the second, third and fourth tiers of English football, as well as FA Cup matches and (as 'fourth' officials) in the Premier League.

PGMOL's principal argument was that no contractual relationship existed between PGMOL and the National Group of referees. These referees are, before the season starts, sent a number of documents (some requiring signature) which include: "Code of Practice", set of "Guidelines" and "Match Day Procedures". However, according to PGMOL, none of these in isolation, nor taken together, amounted to a "contract" between employee and employer. PGMOL's position was that for the National Group officials, match officiating was a hobby (albeit a very serious one). They managed their match officiating around other paid work. These individuals are committed and largely adhere to PGMOL's requests on a voluntary basis.

HMRC, in contrast, argued that taking into account the written documents in their entirety and the wider factual matrix, there were express annual contracts between PGMOL and the referees. It was HMRC's position that each individual engagement to officiate at a particular match was a contract of employment, existing in the context of an overarching or umbrella contract.

FTT decision

The appeal was allowed.

The FTT concluded that the National Group referees did each have a contractual relationship with PGMOL (both in the form of individual engagements for specific matches and also a seasonal 'overarching' contract). The FTT had little difficulty in finding that PGMOL was created to provide the services of the match officials to the various competitions and that in order to do so PGMOL had to engage the officials. However, on the key question of whether these contractual arrangements gave rise to a contract of service, the FTT disagreed with HMRC and held that the contractual arrangements did not give rise to a  contract of service.

Applying the established multi-factorial test for employment status, the FTT concluded (amongst other things) that:

• the documents contained no legal obligation to provide work or to accept any work offered; the FTT noted that "this is not an ordinary situation" as PGMOL is dealing with highly-motivated individuals, who generally wished to make themselves available for such high-profile matches as regularly as possible and there was therefore no need to impose a legal obligation on them to accept work;

• there was no sanction if a National Group official could not attend an 'accepted' match for any reason; rather than being a breach of the contract that the FTT had identified, the official would simply not be paid and PGMOL would find a replacement;

• on match day, the referee was undoubtedly in charge; his decisions were final and the FTT was not able to ascribe to PGMOL a sufficient degree of control over the officials to satisfy the test for employment status;

• the other relevant factors did not otherwise point to a relationship of employment between PGMOL and the officials.
  

Comment
 

Although employment status cases are necessarily heavily fact specific, this case provides a helpful and interesting commentary on the important concepts of 'control' and 'mutuality of obligation'. These concepts have, in the era of the 'gig' economy, never required closer examination. The fact that PGMOL was able to exercise an element of control did not automatically mean there was a contract of service, as HMRC so often argue. The pointers towards employment in this case were outweighed by the fact there was insufficient control and mutuality of obligation.

A copy of the decision can be viewed here.