Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Ltd

A contract of employment may exist for a single engagement even though neither party was obliged to offer or accept the work and either could cancel beforehand. The necessary mutuality exists where personal service is performed for remuneration. A right to cancel without penalty does not negate mutuality while the contract subsists, although the nature and extent of the obligations remain relevant to the overall classification.

Control requires a sufficient contractual framework. It need extend only so far as the work permits and may operate through obligations, assessment, sanctions or collateral matters rather than direct intervention. Mutuality and control are necessary but not sufficient: the court must ultimately assess the contract and relationship as a whole.

Professional Game Match Officials Ltd engaged part-time National Group football referees under an overarching seasonal agreement and separate contracts for individual matches. The dispute concerned whether match fees paid in the 2014–15 and 2015–16 tax years attracted PAYE and National Insurance liabilities because the individual contracts were contracts of employment.

The First-tier Tribunal, [2018] UKFTT 528 (TC), found insufficient mutuality of obligation and control. The Upper Tribunal, [2020] UKUT 147 (TCC), upheld the mutuality conclusion but identified errors concerning control. The Court of Appeal, [2021] EWCA Civ 1370, held that the individual contracts possessed sufficient mutuality and that the contractual arrangements were capable of providing the required control. It remitted the overall classification question.

The Supreme Court considered whether the individual match contracts met the irreducible minimum requirements of mutuality of obligation and control.

1. Appeal dismissed unanimously. Lord Richards delivered the judgment, with which Lord Hodge, Lord Leggatt, Lord Stephens and Lady Rose agreed. The individual match contracts satisfied the irreducible minimum requirements of mutuality of obligation and control. The ultimate question whether they were contracts of employment remained for the First-tier Tribunal.

2. Mutuality of obligation requires the putative employee to provide personal service in return for remuneration. A single engagement can constitute a contract of employment even if neither party has obligations between engagements. Authorities requiring continuing obligations to offer and accept work concerned overarching or umbrella contracts and did not establish that obligations must arise before performance of a single engagement begins.

3. The referees and the company were contractually bound from acceptance of each match appointment unless the engagement was terminated. In any event, sufficient mutuality existed while the referee officiated and prepared the match report. A right to cancel without penalty was irrelevant to whether the threshold requirement existed while the contract remained in force. The nature and extent of the obligations, including assignment-by-assignment working, could nevertheless inform the final assessment of employment status.

4. Control requires a sufficient contractual framework, assessed according to the work and the scope available for direction. An employer need not possess a right to intervene in every aspect of performance. Skilled or institutionally independent work may leave little room for directions about the core task, while permitting control through incidental or collateral matters.

5. The First-tier Tribunal erred by treating the inability to intervene while a referee officiated as decisive and by discounting sanctions imposed after an engagement. Contractual conduct requirements, match-day procedures, assessment and coaching arrangements, and effective consequences affecting future appointments and merit payments were capable collectively of providing control. On the findings, they supplied the necessary framework.

6. Mutuality and control are necessary but not sufficient conditions. Their nature and degree remain relevant when the contract and surrounding circumstances are considered in the round. The case was remitted to the First-tier Tribunal to decide, on its original findings and the guidance in this judgment and Atholl House, whether the individual match contracts were contracts of employment.

1. United Kingdom Supreme Court: Dismissed the company’s appeal on mutuality of obligation and control. It held that both threshold requirements were satisfied and remitted the overall employment-status question to the First-tier Tribunal: [2024] UKSC 29.
2. Court of Appeal: Allowed HMRC’s appeal concerning mutuality under the individual contracts, rejected the company’s case on control and ordered remission for the overall employment-status assessment: [2021] EWCA Civ 1370; [2022] 1 All ER 971.
3. Upper Tribunal: Dismissed HMRC’s appeal because it upheld the finding of insufficient mutuality, although it identified legal errors in the First-tier Tribunal’s treatment of control: [2020] UKUT 147 (TCC).
4. First-tier Tribunal: Held that the overarching and individual contracts were not contracts of employment. It found insufficient mutuality and control in the individual contracts: [2018] UKFTT 528 (TC).