A game of two halves: First-Tier Tribunal decides referees are not employees on remittal from the Supreme Court

The First-tier Tribunal (FTT, or Tribunal) has found in Professional Game Match Officials Ltd v HMRC [2026] UKFTT 654 (TC) that individual match engagements between PGMOL and its referees were not contracts of employment. 

As reported in our previous blog post, the Supreme Court had dismissed PGMOL’s appeal on the first two limbs of the Ready Mixed Concrete (South East) Ltd v Minister for Pensions and National Insurance [1968] 2 QB 497 (“RMC”) test, finding that the basic legal requirements for a contract of employment – a sufficient degree of mutuality of obligation and control – were satisfied in relation to the individual match engagement. However, the Supreme Court remitted the matter back to the FTT, directing it to consider the wider question of whether, taking all relevant factors into account using the factual findings from the original FTT decision in 2018, the match appointments were properly characterised as contracts of employment. 

This decision is one of the most detailed and structured applications of the multifactorial employment-status test to the facts since the Supreme Court clarified the legal framework and endorsed the guidance given by the Court of Appeal in Atholl House in 2022, and it will be a useful reference point for practitioners advising on employment status for tax purposes. 

Background 

This case concerned the employment status (for tax purposes) of part-time football referees who PGMOL assigned to officiate significant football games. The referees were engaged by PGMOL under overarching contracts covering the whole of the football season, and individual contracts covering each match for which they agreed to officiate. This case concerned only the individual contracts. 

HMRC’s view was that the relationship between referees and PGMOL under the individual contracts was one of employment, and therefore fees received by referees to officiate at matches (under individual match contracts) should attract PAYE and National Insurance Contributions; PGMOL’s view was that the referees were providing services on a self-employed basis.

Legal framework

The three-stage test in RMC is applied by the Tribunals and Courts when determining whether a contract is a contract of service. The test sets out three conditions that must all be satisfied for a contract of employment to exist:

Stage 1 — Mutuality of Obligation: The worker must agree to provide their own work and skill in return for remuneration. There must be an obligation on one party to offer work and an obligation on the other to perform it. Without this irreducible minimum, there is no contract of employment.

Stage 2 — Control: The worker must agree to be subject to the other party's control to a sufficient degree. The engager must have the right to direct not just what work is done, but how it is done. Again, without a sufficient framework of control, no contract of employment can exist.

Stage 3 — The Multifactorial Evaluation: If Stages 1 and 2 are satisfied, the terms of the contract and all of the relevant circumstances must be weighed to determine whether they are consistent with a finding of employment. This is not a simple checklist exercise — the Tribunal must stand back and weigh the cumulative effect of all relevant factors, including mutuality of obligation, control, and other factors such as integration into the engager's organisation, economic reality, financial risk, time commitment, and the nature of the relationship as a whole, to determine whether, overall, the contract is properly characterised as one of employment or one for services.

Passing Stages 1 and 2 is a necessary but not sufficient condition — it opens the door to a finding of employment but does not create a presumption of employment. The real evaluative exercise takes place at Stage 3, which was the task that the FTT engaged in in this decision.

Findings

1. Mutuality of obligation

Following the Supreme Court’s finding that mutuality of obligation existed, the FTT was required to consider its nature and quality as part of its multifactorial assessment. The Tribunal attached particular importance to three factual findings. First, the referee’s ability to decline appointments and its exercise in practice was significant as the ability to accept or refuse assignments was an important indicator of independence and was inconsistent with the mutuality required for employment unless other factors powerfully point the other way (see Windle v Secretary of State for Justice [2016] EWCA Civ 459). Second, the FTT placed significant weight on the FTT's finding that referees could withdraw from an appointment after accepting it, up to the point of arrival at the ground, without being in breach of contract or subject to any disciplinary sanction, and that PGMOL would simply appoint a replacement. That feature was described as fundamentally inconsistent with the structure of employment. Third, particular weight was also attached by the Tribunal to the previous FTT’s findings that refereeing at this level was pursued as a serious hobby but it “did not pay the bills” and was fitted around primary work commitments. 

The Tribunal concluded that although the minimum mutuality necessary for finding of employment was present, its nature and quality bore little resemblance to the reciprocal obligations characteristic of employment. The actual character of the mutual obligations pointed materially away from a contract of employment.

2. Control

Having acknowledged that there were a number of features of the control exercisable by PGMOL that were indicative of employment (such as the assessment system and merit-based remuneration), the Tribunal placed significance on several other features that it regarded as decisive in the other direction.

The Tribunal found the fact that referees retained complete autonomy in performing the core officiating function to be significant in pointing away from employment. In addition, PGMOL served more as an administrator of behavioural and integrity-related requirements that formed part of the regulatory framework for football, including Football Association regulations, rather than as an employer exercising discretion over how work should be done. Obligations flowing from external regulation differed in character from employer-imposed directions. Further, the lack of disciplinary authority of PGMOL over the manner in which the core function was carried out materially distinguished the case from a typical employment. PGMOL’s function in the assessment and coaching arrangements with referees was prospective and gatekeeping - affecting eligibility for future appointments and progression within a regulated professional pathway, rather than supervisory or directive of the core officiating function during performance of the contract.

Drawing these matters together, the FTT found that the nature and quality of control exercised by PGMOL was “regulatory” and “facilitative” rather than “managerial” or “supervisory” – it did not place referees in a “position of subordination”, as would be characteristic of an employment relationship. 

3. Other factors

When considering the degree of integration of referees into PGMOL’s organisation, the FTT distinguished operational involvement from organisational integration, characterising PGMOL as an “administrative co-ordinating body”; referees did not participate in PGMOL’s decision-making, administration, commercial operations or management. Their authority to preside over football matches derived from the Football Association, who certified and regulated them, not from PGMOL. The FTT considered that integration meant being part of an organisation’s structure, rather than simply being operationally involved with an organisation.

Financial risk and economic reality were factors that also pointed away from employment. Considerable weight was attached to the absence of economic dependency, which rendered immaterial the absence of financial risk. Similarly, the absence of fee negotiation was irrelevant in a context where “the activity in question was not undertaken as a business at all” – refereeing was “not an income maximising enterprise”, but rather a “serious hobby”.

The Tribunal also addressed a series of subsidiary factors: time commitment, dependence on a single paymaster, provision of equipment, length and continuity of the relationship, exclusivity, and the inability to offer a substitute. The Tribunal found that these factors were either neutral or of limited weight.

Standing back and assessing the overall picture, the Tribunal found resoundingly in favour of PGMOL. The relationships between PGMOL and the referees lacked the hallmarks of employment: there was no ongoing mutual commitment, no subordination in relation to the referee’s central task, no economic dependency, and no organisational integration. The cumulative effect of the evidence led to a clear conclusion that the individual match engagements were contracts for services and not contracts of employment.

Reflections

This decision by the FTT will be welcome to businesses relying on temporary or freelance workers, especially those engaging workers on an episodic or project-specific basis. Notwithstanding the findings of sufficient mutuality of obligation and control at Stages 1 and 2 of the three-stage test in RMC, Stage 3 stands alone and requires a careful examination of the nature, quality and sources of the relevant mutuality of obligation and control. This is a case in which the FTT found that both the character of the mutuality of obligation and the nature and quality of the control pointed away from a contract of employment.

Whether HMRC will seek permission to appeal remains to be seen. Given the tortuous history of this litigation, and that the Supreme Court itself found the matter to be "clearly" one in which mutuality and control were satisfied, a further challenge cannot be ruled out.