Conroy v Scottish Football Association Ltd

Employment status depends on a qualitative assessment of the whole relationship. The tribunal must consider mutual obligations, contractual control and whether the remaining terms are consistent with employment. It should not decide the issue mechanically by counting indicators.

A regulatory body may set standards, require fitness and training, assess performance, and impose conditions for participation without employing the person concerned. Repeated assignments do not create an overarching contract where neither party is obliged to offer or accept work between assignments.

The claimant, a doctor and Category 1 football referee, brought claims for unfair dismissal, age discrimination and holiday pay against the body governing football refereeing in Scotland.

The Employment Tribunal held that he was a worker under regulation 2(1) of the Working Time Regulations 1998 and an employee for the purposes of section 83(2) of the Equality Act 2010, but was not an employee under section 230(1) of the Employment Rights Act 1996. It found no obligation on the respondent to offer matches or on the claimant to accept them, and no sufficient contractual control during a match.

The claimant appealed only the finding that he was not an employee for unfair-dismissal purposes. The central issue was whether the Tribunal had erred in its legal inferences from the undisputed facts.

1. Appeal dismissed. The Employment Judge made findings which were open to her and committed no error of law in concluding that the claimant was not employed under section 230(1) of the Employment Rights Act 1996.

2. Employment status was fact specific. The Judge correctly applied the guidance in Readymix Concrete v Minister of Pensions and National Insurance [1968] 2QB 497 and evaluated the whole relationship rather than treating any one feature as decisive. The appropriate exercise was to assemble the relevant detail and make a qualitative assessment of its overall effect, as explained in Hall (Inspector of Taxes) v Lorimer [1994] 1 WLR 209.

3. There was no continuing obligation to provide or accept refereeing work. Although matches were commonly offered and accepted, the respondent could offer none and the claimant could decline an assignment. The Tribunal was entitled to find that neither an overarching contract nor a succession of contracts of employment arose from the six-week ballot, training or meetings.

4. The Tribunal was also entitled to find no contractual control sufficient for a contract of employment during an individual match. The referee acted autonomously under the Laws of the Game. Performance assessment affected classification and future selection; it did not direct the referee’s conduct during play. Discipline was exercised by an independent Judicial Panel rather than the respondent.

5. The respondent’s requirements concerning registration, fitness, training, conduct and availability were consistent with its role as a governing regulatory body. Such standards did not, without more, establish employment. The Tribunal permissibly weighed against employment the absence of mutual obligations, the claimant’s ability to decline games, absence of sick pay and his provision of some equipment, notwithstanding factors capable of pointing the other way.

• Employment Appeal Tribunal: Appeal dismissed; the Tribunal’s determination that the claimant was not an employee under section 230(1) of the Employment Rights Act 1996 was upheld.
• Employment Tribunal, Glasgow: Decision sent on 13 February 2013. The claimant was held to be a worker under regulation 2(1) of the Working Time Regulations 1998 and an employee for section 83(2) of the Equality Act 2010, but not an employee under section 230(1) of the Employment Rights Act 1996.