Employment and pensions

UK Court of Appeal shows red card to referees

Published on 17th Sep 2021

Occasional work can be 'employment' and, by extension, within the IR35 tax regime

The long-awaited Court of Appeal decision about the employment and tax status of football referees has been issued. The court says that a single assignment under an overarching contract can be a contract of employment (and effectively within the IR35 "deemed employment" tax regime for contract workers working via their own personal service companies). This is the case even if there is no obligation to accept those assignments.

Implications beyond football

This has implications far beyond the world of football – many current "occasional" contracting arrangements relying (probably wrongly it now seems) on arguments that occasionality, and there being "no obligation to accept assignments", mean there is no contract of employment (and that IR35 does not apply) in relation to those assignments that are then performed.

Another interesting aspect of the decision is that the court clarified that it did not matter that the "employer" could not exactly step on to the pitch in the middle of the game to tell the referee what to decide (which of course many of us would like to do from time to time) – the "control" aspects of employment status could be satisfied just by having guidelines, training protocols and disciplinary procedures.

The case has now been sent back down the Tax Tribunal to consider again whether, in relation to the referees, there was actually enough control.

Osborne Clarke comment

This decision will have implications for those IR35 assessment systems which currently over rely on the absence of "mutuality of obligation" in determining that an assessment is outside IR35. Anyone using such systems, including those provided by third parties, should immediately review the weighting given to mutuality of obligation in those systems. Some systems get this right; others don't. Increasingly, whether "control" exists seems to be becoming the main factor in determining employment and tax status in UK cases.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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