- The Court of Appeal (CoA) has overturned the decision of the Upper Tribunal (UT), ruling in favour of HMRC.
- In their judgement, the CoA have confirmed that the lower courts had ‘erred in law in their approaches to the question of mutuality of obligation in the individual contracts’
- The case concerned the Professional Game Match Officials Limited (PGMOL) who employ a number of referees under employment contracts. However, they also have some referees who choose to perform these duties in their spare time alongside other employment. HMRC’s argument is that tax and National Insurance Contributions should be deducted from payments made to these part time referees too
- HMRC argued that these individuals should be considered employees, not self-employed, and consequently raised a tax liability of £583,874 excluding interest
In the most recent hearing, the CoA stated the following;
- The First Tier Tribunal (“FTT”) had correctly recognised that the question of whether the individual contracts were contracts of employment was legally distinct from whether the overarching contract was a contract of employment.
- However, the FTT had erred in law in deciding that the ‘ability of either side to pull out before a game’ negated the necessary mutuality of obligation. The CoA stated that the correct approach is that ‘if there was a contract, its terms permit either side to terminate the contract before it is performed, without breaching it, is immaterial and the contract subsists, with its mutual obligations, unless and until it is terminated by one side or the other.’
- The CoA also considered that the UT had ‘overcomplicated that analysis’ of the authorities on mutuality of obligation.
- The UT's reasoning confused 'a contract in the employment field', which could be a contract of employment or a contract for services, with a contract of employment.
- The UT had erred in law in concluding that the coaching and assessment systems could not be relevant to the question of control.
- The CoA found that the FTT had erred in law by ‘taking into account irrelevant considerations, in concluding that PGMOL's inability to 'step in' during a match or to impose any sanction until after a match was ended were relevant to control.’
- It was not for the FTT to decide that PGMOL was unable to impose any sanction, during the period of an individual contract, for breach by a referee.
- The FTT had erred in not giving the elements of control conferred by the overarching contract 'any, or any sufficient, weight'.
The CoA has now referred the case back to the FTT for reconsideration.
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