Supreme Court rules on employment status of part-time football referees

Case background

The case of HMRC v Professional Game Match Officials Ltd (PGMOL) [2024] UKSC 29 concerned part-time referees who officiate football matches in leagues such as the Championship and the FA Cup.

The part-time referees are engaged annually under overarching contracts. They are appointed to matches and can accept or decline match appointments. Where a match appointment is accepted, this gives rise to an individual contract in relation to that particular match.

A question arose as to the employment status of the part-time referees. The classification would affect whether their earning would be subject to income tax and National Insurance under PAYE.

Factors relevant to determining employment status

There are long-established key conditions that must be fulfilled for an employment contract to exist, namely:

• The individual agrees to provide their work and skill in exchange for remuneration (mutuality of obligation)
• The individual agrees, expressly or impliedly, to be subject to a sufficient degree of control by the other party (control)
• The other provisions of the contract are consistent with it being a contract of service rather than one of self-employment (other relevant factors)

The decisions of the lower courts

HMRC argued that both the overarching and individual contracts were contracts of employment. The First-tier Tribunal disagreed, finding that there was insufficient mutuality of obligation and control over the referees for an employment contract to be in existence. The Upper Tribunal upheld the First-tier Tribunal's decision.

The Court of Appeal however partially upheld HMRC's appeal. It found there was mutuality of obligation and control in the individual contracts but not in the overarching contracts. PGMOL appealed to the Supreme Court in respect of the issue of mutuality of obligation and control. HMRC did not challenge the ruling that the overarching contracts were not contracts of employment.

Supreme Court hands down its judgment

The Supreme Court held that there was sufficient mutuality of obligation and control for the individual contracts to potentially constitute contracts of employment. The case has been remitted to the FTT to determine whether the other provisions of the contract are consistent with it being an employment contract.

PGMOL had argued that there was no mutuality because both the referees and PGMOL could cancel match engagements without penalty before the match took place. However, the Supreme Court disagreed, ruling that once a referee accepted a match appointment, mutual obligations existed until the match was completed and the report submitted.

In respect of control, PGMOL argued that referees, being independent while officiating, were not under its control during the match. However, the Supreme Court found that control does not need to be absolute or exercised continuously. What matters is whether the employer has a sufficient framework of control over the worker.

Learning Points for Employers

This ruling underscores that mutuality does not require long-term, continuous obligations. Even if engagements are short-term, such as for one football match, there can still be mutuality of obligation for the duration of that engagement. This finding is important for employers engaging workers on a temporary, event-driven, or ad-hoc basis, as mutuality can exist within each individual engagement.

The decision also highlights that control can take many forms. It does not have to involve direct supervision of every task. Control can be exerted through procedures, performance assessments, and post-task sanctions. Employers should consider the cumulative effect of control mechanisms, in employment status deliberations.

Finally, its important to note that this was a tax case, not a case in the employment tribunal. As such the Supreme Court was not deciding whether the referees were "workers" or "employees". When analysing whether an individual should have income tax and national insurance deducted at source there are only two categories available - employment or self-employment. "Worker" status only applies when considering certain employment law rights. 

For more information or advice, please contact Ella Straker in our Employment team on 02076 650 921 or complete the form below.