We commented last year on the dispute between Professional Game Match Officials Ltd ('PGMOL') and HMRC as to whether National Group referees ('NGRs') - who officiate primarily in Leagues 1 and 2 of the Football League - are or are not employees.
The background is that each NGR enters into an 'overarching contract' with PGMOL at the start of each season. There are various 'expectations' under the contract including the need for referees to keep fit, but there is no guarantee that a referee will be offered any appointments to matches, and referees are not obliged to accept any appointments to matches offered to them.
Engagements for particular matches are usually offered on the Monday preceding the weekend of the match; but following acceptance of an appointment it is still open to PGMOL to revoke the appointment and to the referee to withdraw, at any point before the scheduled match.
For an employment to exist requires there to be both 'mutuality of obligation' and a sufficient degree of control. Both these factors have therefore to be considered in regard to both the 'overarching contract' and each individual 'match contract'.
The First-Tier Tribunal ('FTT') and the Upper Tribunal had both concluded that 'the fact that either side could pull out of the engagement before a game, without any breach of contract, or any sanction, negated the necessary mutuality of obligation'. For that reason alone the referees were not employees.
The Court of Appeal in [2021] EWCA Civ 1370 has now concluded that both lower tribunals were wrong in that regard: on the contrary, 'the correct analysis is that if there is a contract, the fact that its terms permit either side to terminate the contract before it is performed, without breaching it, is immaterial. The contract subsists (with its mutual obligations) unless and until it is terminated by one side or the other.'
The Court also considered that both tribunals had got it wrong on control, albeit in different ways: 'there are many features of the relationship between PGMOL and the NGRs which could show that there was a sufficient framework of control, particularly when the terms of the overarching contract are taken into account.'
However, although the Court found that the arrangements were capable of amounting to employment, it held back from saying whether or not they actually did so; that depended on an assessment of the facts, made in the light of the Court's findings on the points of law, which were 'assessments best made by a specialist fact-finding tribunal, not an appellate Court.'
The case was therefore remitted to the FTT for a 'replay'.
Not, perhaps, an ideal outcome, especially as there are other cases in which judgement has been deferred pending a final decision in PGMOL. But at least it didn't go to penalties.
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