The Supreme Court handed down its judgment on 16 September 2024 in the HMRC v Professional Game Match Officials Ltd case, which emphasised the importance of the principles used to determine employment status.
This article gives detail on the HMRC v Professional Game Match Officials Ltd case, explaining the decisions of the Tribunal and the Court of Appeal and Supreme Court’s findings. We also reveal the key considerations for determining employment status that employers need to be aware of.
Professional Game Match Officials (PGMOL) are the body responsible for refereeing games across the Premier League, English Football League and Football Association. PGMOL employ referees who undertake refereeing in their spare time, typically alongside other full time employment. They were treated as self-employed. HMRC disagreed, arguing instead that PGMOL should have deducted income tax and national insurance from the payments it made to referees.
There are three key elements of the test for the existence of an employment contract:
The Tribunal found that the pre-season documents constituted express season-long overarching contracts between the referees and PGMOL. They found that an individual contract was formed when a referee accepted a match appointment offered by PGMOL. HMRC appealed to the Upper Tribunal and then the Court of Appeal. The Court of Appeal found there to be sufficient mutuality of obligation under the individual contracts, however they dismissed the appeal with regards to the overarching contracts.
PGMOL appealed to the Supreme Court against the decision of the Court of Appeal, arguing that sufficient mutuality of obligation nor control was present, so the individual contracts were not contracts of employment.
The Supreme Court found that the mutuality of obligation covered the ‘period while the employee carried out work for which he or she is paid’. Therefore there was ‘sufficient’ mutuality of obligation from the referees in the period from the arrival at the football ground to the submission of their match report.
The Supreme Court recognised that the ‘sufficient degree of control’ element allowed for a wider range of circumstances and suggested that ‘it is not necessary for an employer to have a contractual right to intervene in every aspect of the performance’ of the employee’s duties. For example, it would be nonsensical for hospital managers to intervene in an operation performed by surgeons.
The Supreme Court dismissed PGMOL’s appeal on both issues, mutuality of obligation and control.
This case provides a clear restatement of the key principles in determining whether a contract of employment exists. Mutuality of obligation and control aren’t determinative, all other terms of the contract and the circumstances of the parties’ relationship should be viewed in the round.
The case made clear that the second limb of the test is fact-specific. The employer needn’t have specific control to intervene in every aspect, particularly in professions that are highly skilled, the rights of intervention in these cases are implied, not express.
The Supreme Court ruled that the part time referees had sufficient mutuality of obligation and control to be employees. However the Supreme Court has remitted the case to the Tribunal on the basis of its original findings of fact, with the assumption that the requirements of mutuality of obligations and control are met in this case.
For more information, please contact our employment team.
