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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Revenue and Customs v Professional Game Match Officials Ltd [2021] EWCA Civ 1370 (17 September 2021) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/1370.html Cite as: [2021] EWCA Civ 1370, [2021] BTC 27, [2021] STC 1956, [2022] 1 All ER 971 |
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ON APPEAL FROM
The Upper Tribunal (Tax and Chancery) Chamber
(The Honourable Mr Justice Zacaroli and Judge Thomas Scott)
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ELISABETH LAING
and
SIR NICHOLAS PATTEN
____________________
The Commissioners for Her Majesty's Revenue and Customs |
Appellant |
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- and - |
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Professional Game Match Officials Limited |
Respondent |
____________________
Mr Jonathan Peacock QC and Miss Georgia Hicks (instructed by McCormicks Solicitors) for the Respondent
Hearing dates : 20-22 July 2021
____________________
Crown Copyright ©
Lady Justice Elisabeth Laing DBE :
Introduction
'(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.'
i. Did the FTT err in law in its conclusions
1. about mutuality of obligation
a. in the overarching contract and/or
b. in the individual contracts and
2. about control in the individual contracts?
ii. Did the UT err in law in its conclusions that the FTT
1. did not err in law on the questions of mutuality of obligation but
2. did err in law on the question of control in the individual contracts?
PGMOL have served a Respondent's Notice seeking, in effect, to restore the reasoning of the FTT on the last sub-issue.
The facts found by the FTT
'committed, driven individuals who are passionate about football, refereeing and about their performance as referees, and who have a continual desire to improve'.
They were not doing it for the money.
'They are professional in their approach and place obligations on themselves: two referees referred to refereeing as an addiction. They are ambitious perfectionists. They have worked very hard over a number of years to be promoted through the different levels of refereeing. They recognise that not making themselves available for matches and training may compromise their ability to perform at the highest level and lose them the opportunity to be offered the best matches, and they do not want that to happen. They want to referee at the level they have worked hard to attain. That is the key reason why they make themselves available as much as possible and do a lot of training. Refereeing is however a hobby and must take second place to primary work commitments. Most but not all thought there was no contract (or at least employment contract) and most thought that the specific training programme was not obligatory. There were references to PGMOL having expectations of referees being available and doing training, and to an expectation on the part of referees of being able to officiate on most dates they had not closed off.'
The legal context
i. If the general engagement was not a contract of employment, there could be no contract of employment in respect of the single stint.
ii. Even if (i) was not a general rule, it was a proposition which applied in the present case, when the contractual terms applied both to the general engagement and to the single stint.
iii. If a single stint could, in theory, give rise to a contract of employment, the absence of mutual obligations to provide, and to do, work, was fatal to its existence in that case.
The FTT's legal reasoning
The grant of permission to appeal to the UT
The decision of the UT
Mutuality of obligation
i. Apart from the requirement that services must be provided personally, is the requirement of mutuality relevant only to the question whether there is a contract of any kind, and not to the question of whether the contract is contract of employment or a contract for services?
ii. Is the content of the relevant obligations only that they be sufficiently work-related, and 'in particular' is it 'unnecessary that the employer commits to provide work, or payment in lieu of work, or that the individual commits to accept work'?
The overarching contracts
The individual contracts
Control in the individual contracts
i. Did the FTT correctly apply the test whether PGMOL had the right to 'step in' and give instructions to referees?
ii. Was the FTT correct to rely on PGMOL's inability to impose any sanction for breach until after an individual contract had ended?
iii. Did the FTT err in the weight it gave to PGMOL's right of control conferred by the overarching contract while the individual contract was in force?
iv. Was the FTT's conclusion that PGMOL could not impose any sanction for breach during the individual contract reasonably open to it?
Discussion
Mutuality of obligation
i. The question whether a single engagement gives rise to a contract of employment is not resolved by a decision that the overarching contract does not give rise to a contract of employment.
ii. In particular, the fact that there is no obligation under the overarching contract to offer, or to do, work (if offered) (or that there are clauses expressly negativing such obligations) does not decide that the single engagement cannot be a contract of employment. The nature of each contract is a distinct question.
iii. A single engagement can give rise to a contract of employment if work which has in fact been offered is in fact done for payment.
The FTT
The UT
Control
The FTT
The UT
Conclusions
Sir Nicholas Patten
Lord Justice Henderson