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Revenue and Customs v Professional Game Match Officials Ltd


A case note by Joanne Twomey.

The Upper Tribunal (Tax and Chancery Chamber) recently held in Revenue and Customs v Professional Game Match Officials Ltd that part-time football referees are independent contractors (rather than employees, whose match fees and other payments are subject to PAYE).

The referees in this tax appeal were engaged by Professional Game Match Officials Limited (PGMOL) to officiate at football matches, primarily in Leagues 1 and 2 of the Football League. These referees undertake refereeing duties in their free time, usually alongside other full-time employment. HMRC issued a determination that the referees were employees of PGMOL, with the consequential PAYE and other tax consequences which apply. PGMOL appealed to the First Tier Tribunal.

The First Tier Tribunal held that there was both an overarching annual contract between PGMOL and the referees and also a series of separate contracts between PGMOL and each referee in relation to each specific match for which that referee was engaged.

The authority of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance identifies two key elements of a contract of service: ‘mutuality of obligation’ and ‘control’. The First Tier Tribunal found these key elements were lacking in both contracts. HMRC appealed to the Upper Tribunal.

The Upper Tribunal agreed with the First Tier Tribunal with regards to the issue of mutuality of obligation: it considered that the referees were “highly motivated and wished to make themselves available as much as possible, such that there was no need for a legal obligation”. Further, PGMOL had no obligation to provide work. As far as the individual contracts were concerned, it importantly noted the ability of either party to walk away post-acceptance of match allocation without being in breach of contract.

With regards to the second key element, control, the Upper Tribunal stated that the First Tier Tribunal had placed too much weight on the fact that PGMOL could not step in while a referee was officiating a match. The Upper Tribunal held that whilst there needs to be some sufficient 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. As the finding of lack of mutuality obligation had decided the point on employment status, the control argument was not further explored.

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Joanne Twomey

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