Professional Game Match Officials - Court of Appeal sends football referees case back to the Tax Tribunal
In HMRC v Professional Game Match Officials Ltd  EWCA Civ 1370, the Court of Appeal (CoA) held that the First-tier Tribunal (FTT) and Upper Tribunal (UT) both erred in law in their approaches to the question of 'mutuality of obligation' and upheld the UT's decision that the FTT had erred in its approach to the issue of control. The case has been sent back to the FTT to reconsider whether there was sufficient mutuality of obligation and control in the individual contracts for them to be contracts of employment.
Professional Game Match Officials Ltd (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 appeals in question related to payments (ie 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 Premier League matches.1
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 (in capacity as fourth officials) in the Premier League.
PGMOL's principal argument was that no contractual relationship existed between it and the National Group of referees. These referees are, before the season starts, sent a number of documents (some requiring signature) which include a Code of Practice, a 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 of officials, match officiating was a hobby (albeit a very serious one). They managed their match officiating around other paid work (which 'paid the bills'). These individuals are ambitious and committed, and enjoy the role. They therefore, largely, adhered 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.
PGMOL appealed to the FTT.
The appeal was allowed.
The FTT concluded that the National Group of 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). However, on the key question the FTT disagreed with HMRC and held that these contractual arrangements did not give rise to a contract of service.
Applying the established multi-factorial test for employment status, the FTT held (amongst other things) that:
- The documents contained no legal obligation to provide work or to accept 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. There was therefore no need to impose a legal obligation 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.
The UT dismissed HMRC's appeal concluding that the FTT had not erred in law in its decision that the referees were engaged under contracts for services.
The appeal was allowed.
The CoA concluded that both the FTT and UT erred in law. Specifically, in respect of the individual contracts, the CofA was of the view that:
- The FTT erred in law in its approach to the question of control. The FTT placed too much emphasis on the fact that, whilst the referee was officiating a match, PGMOL had no right to 'step in'. Although the referee had total control on the pitch as soon as the whistle was blown, the FTT failed to take into consideration the coaching and assessment systems that existed outside of the 90 minutes on the pitch. The assessment system gave PGMOL "a significant lever with which to influence" the referees' performance of individual engagements. The fact that the referees were being coached, with areas for improvement being discussed between matches, could influence a referee's approach to decisions in later games. Both the assessment and coaching systems should have been taken into account by the FTT in assessing whether the individual contracts gave PGMOL sufficient 'control'.
- The FTT and UT erred in law in their approach to mutuality of obligation. The FTT erred in law when deciding that the ability of either the referee, or PGMOL, to pull out of a game before kick-off meant there was no mutuality of obligation. The contract subsists, with mutual obligations, until such time as it is terminated by either party. The fact that the terms of a contract permit either side to terminate before performance is immaterial.
The appeal was remitted to the FTT to consider, based on its original findings of fact, whether the nature of the referees' individual contracts with PGMOL are such that sufficient control and mutuality of obligation exists for those contracts to be considered contracts of service (such that payments would be subject to tax and national insurance as payments to employees).
Whether an individual is employed (under a contract of service), or self-employed (under a contract for services), for tax purposes is a question that continues to present difficulties for taxpayers, HMRC and the courts alike.
This is the latest decision in a long-running dispute between PGMOL and HMRC as to whether payments made to a group of elite football referees should be properly taxed as payments to employees (with the associated tax and national insurance contributions). Both the FTT and the UT concluded that the referees and other match day officials were not employees of PGMOL.
However, both the FTT and UT have received the 'hairdryer treatment' (to use the football parlance) from the CofA. The Court held that each tribunal had erred in law on the key questions as to the presence of sufficient (i) mutuality of obligation; and (ii) control in the contracts between the referees and PGMOL. As the matter has now been sent back to the FTT for it to reconsider, there is no sign of a conclusive result in this case any time soon .
As each of the decisions in this case demonstrate, one thing that is clear is whether an individual is, or is not, an employee for tax purposes, remains a highly fact-dependant question.
The judgment can be viewed here.
Footnote : 1. The Premier League officials are employed by PGMOL under full-time written contracts of employment.