1/ HMRC v Professional Game Match Officials Ltd: A potentially important UT(TCC) case about football referees, though disappointingly it's not about whistleblowers! It's on employment status and is a real must read for #ukemplaw-yers. bailii.org/uk/cases/UKUT/…
2/ The case concerns referees who mainly operate in the 1st & 2nd division & FA Cup games, generally as a part-time hobby alongside their normal full-time job. HMRC issued a determination that the refs were employees, with the consequential tax treatment that applies.
3/ PGMOL appealed successfully to the FTT & HMRC then appealed to the Upper Tribunal. The appeal centred on questions of the mutual obligation requirement & control tests & the UT's judgment is as good as a textbook on these issues, with some important legal conclusions.
4/ PGMOL provides match officials to the FA. Appointments are on an annual basis. There's a code of practice which includes the classic disavowal of mutuality of obligations. 
5/ The Code contains various other clauses of interest, including that the FA or relevant league sets the fees, some parts of kit are provided (not whistles, cards, notebooks or boots!), performance is monitored & refs can only speak to the media in prescribed circumstances.
6/ Importantly, match appointments are offered through an admin system. Allocation of a match doesn't put in place an obligation to accept, and both ref & PGMOL could pull out of an accepted allocation at any point before the match without being in breach.
7/ The FTT found a legally enforceable overarching contract, but that it wasn't a contract of employment. Key was the lack of an enduring work-wage bargain. PGMOL wasn't obliged to provide work nor the refs to accept work. HMRC tried an Autoclenz argument but without success.
8/ The Autoclenz argument focused on various expectations in the Code of Practice, which HMRC said should be read as obligations. That argument was stymied for a number of reasons, most interestingly because the FTT viewed the refs as motivated hobbyists who loved their hobby.
9/ The FTT found that the individual contracts for each match also didn't reach the required level of mutual obligation or control to amount to employment contracts. Key was the ability of either party to walk away post-acceptance of allocation without breach or sanction.
10/ HMRC appealed the mutuality of obligations decision in respect of both the overarching & individual contracts. They attacked those decisions from a whole host of angles.
11/ HMRC argued mutuality was only relevant to whether or not a contract of any sort existed, rather than being specifically fundamental to an employment contract. That would have substantially lowered the threshold for mutuality & placed focus on questions of control.
12/ HMRC relied heavily on Stephenson v Delphi, but the UT preferred an analysis of Cotswold Development, James v Greenwich & Weight Watchers such that mutual obligation is needed for a contract to exist & the type of obligation determines whether it's an employment contract.
13/ The issue of greatest interest concerned the essential nature of the mutual obligations. The UT made 2 key legal findings which will be of real interest to those arguing employment status cases.
14/ The 1st concerns a passage in Cotswold Developments that has provided some small solace to those ET claimants struggling to find mutuality imitating a traditional work-wage bargain:
15/ The UT read this pretty narrowly, holding that it referred to an obligation to pay a retainer sufficing when there was no obligation to provide work. Arguably that ignores the elasticity inferred from the conferral of some other non-pecuniary benefit example.
16/ Secondly and most importantly, the UT held that mutuality was not satisfied if the employer's only obligation was to pay for work when done. There had to be an obligation to provide work, or a retainer or similar consideration in the absence of work.
17/ All of these findings on mutuality of obligation proved fatal to HMRC's case on the overarching contract. These were enthusiastic hobbyists, PGMOL had no obligation to provide work, & either party could pull out so that any obligation fell away rather than enduring.
18/ They also proved fatal to HMRC's individual contract case, given the lack of obligation to accept & the opportunity for either side to withdraw at any time before the match without being in breach. There was just a unilateral contract obliging payment to a ref who reffed.
19/ In reaching this conclusion, the UT distinguished the single engagement of allocation to a football match from the series of classes the instructors were contracted to undertake in the Weight Watchers case. The lack of restriction on withdrawal was also important.
20/ Finally, albeit not essentially given the mutuality findings, the UT considered the question of control. The FTT placed emphasis on the lack of control by PGMOL during a match, including the inability to take off a badly performing ref during the course of the match.
21/ However, the UT held that whilst there needs to be some framework of control, control doesn't require the ability of the employer to step in or supervise during performance, but is a question of ultimate authority via orders and directions backed by sanction.
22/ Had the UT found there to have been employment contracts entered upon each engagement, it wouldn't have mattered that sanction would not have been applicable until after the match and ref report had been submitted & accordingly after the contract had ended.
23/ I'd be surprised if HMRC didn't take this one further and provide the CA with another opportunity to deal with employment status. It's 2-0 to the referees at the moment, but it may well just be half time. #ukemplaw
