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

The Supreme Court considered whether individual match appointments of part-time football referees (the National Group) amounted to contracts of employment for income tax and National Insurance purposes. The Court emphasised the need to apply common law principles, notably the tests of mutuality of obligation (personal service in return for remuneration) and a sufficient degree of control, read in the round with all contractual terms and surrounding circumstances (following Ready Mixed Concrete and Atholl House). The Court held that the individual match contracts satisfied the minimum requirements of mutuality of obligation and of control (including contractual obligations as to conduct, assessment and sanctions which could influence future appointments and payments), and that the First-tier Tribunal had erred in law in its approach to control. However, the Court remitted the case to the First-tier Tribunal to determine, applying the correct approach to the whole contractual matrix, whether those individual match contracts are contracts of employment.

Background and parties: The appellant, Professional Game Match Officials Limited (PGMOL), provides referees and other match officials for major English football competitions. The respondent, HM Revenue & Customs, sought to treat match fees paid to National Group referees in tax years 2014-15 and 2015-16 as employment income subject to PAYE and to National Insurance as "employed earners" under the relevant statutory regimes.

Procedural history: The First-tier Tribunal found there were overarching (season) and individual match contracts but concluded neither were contracts of employment. The Upper Tribunal dismissed HMRC’s appeal on mutuality and did not decide control. The Court of Appeal allowed HMRC’s appeal as to mutuality in the individual contracts, rejected HMRC’s case on overarching contracts and remitted control and employment characterisation to the FTT. PGMOL appealed to the Supreme Court on mutuality and control in relation to the individual match contracts.

Nature of claim / relief sought: HMRC sought a finding that match fees paid under individual match contracts were employment income and that referees were "employed earners", with the attendant tax and National Insurance consequences.

Issues framed:

• whether each individual match appointment involved sufficient mutuality of obligation (personal service for remuneration) to be a contract of employment;
• whether PGMOL had a sufficient degree or framework of control over referees in respect of the individual appointments to found an employment relationship; and
• how those pre-conditions are to be assessed in light of the totality of contractual terms and surrounding circumstances (including authorities such as Ready Mixed Concrete, Atholl House, Autoclenz and Uber).

Court’s reasoning: The Court reiterated that employment is a contractual concept to be determined by common law principles and that mutuality of obligation and control are necessary but not always sufficient. It held that mutuality of obligation existed from the time a referee accepted an appointment through the MOAS system and that single engagements can amount to contracts of employment. The First-tier Tribunal’s focus on the practical impossibility of intervening during a match underestimated the scope of the control inquiry. The Upper Tribunal and Court of Appeal were correct to recognise that contractual obligations, assessment and coaching systems and the ability to impose sanctions (even if applied after an engagement) can form part of a sufficient framework of control. The Supreme Court dismissed PGMOL’s appeal on both issues but remitted the case to the FTT to decide, in light of the correct legal approach and the whole contractual matrix, whether the individual match contracts are contracts of employment.

Disposition: Appeal dismissed; matter remitted to the First-tier Tribunal to determine whether, applying the correct legal approach to all terms and circumstances, the individual match contracts are contracts of employment.

The appellant's appeal is dismissed. The Supreme Court held that the individual match contracts satisfied the necessary pre-conditions of mutuality of obligation and a sufficient framework of control, and that the First-tier Tribunal erred in law on control. Because the FTT had not applied the correct, cumulative approach to all contractual terms and surrounding circumstances, the Court remitted the case to the FTT to determine whether the individual match contracts are contracts of employment.

First-tier Tribunal: Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Ltd [2018] UKFTT 528 (TC) (FTT found overarching and individual contracts but not contracts of employment). Upper Tribunal: [2020] UKUT 147 (TCC) (UT dismissed HMRC appeal on mutuality; disagreed with some FTT conclusions on control but did not remit on control). Court of Appeal: [2021] EWCA Civ 1370 (allowed HMRC's appeal on mutuality in relation to individual contracts and remitted the question of whether there was sufficient mutuality and control to the FTT). Supreme Court: [2024] UKSC 29 (appeal dismissed; remitted to FTT to determine employment characterisation of individual match contracts).