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After almost a decade of litigation, multiple appeals and a trip to the Supreme Court, the latest decision in PGMOL v HMRC has delivered one of the most important employment status judgments in recent years.
At first glance, the outcome may appear surprising. Despite the Supreme Court seemingly reinforcing HMRC’s arguments around mutuality of obligation and control, the reheard First-tier Tribunal judgement ultimately concluded that the football referees engaged by PGMOL were still self-employed for tax purposes.
That apparent contradiction is exactly why the case matters far beyond professional football. For businesses, contractors and advisers navigating IR35 and the off-payroll working rules, the decision serves as an important reminder that employment status remains a holistic exercise. Even where core employment indicators are present, tribunals will still examine the broader economic and practical reality of the relationship before reaching a conclusion.
Professional Game Match Officials Limited is the body responsible for the provision of referees in English professional football. As an entity, PGMOL is a not-for-profit organisation which is jointly “owned” and funded by three members: the FA, the Premier League and the EFL.
Whilst there are over 30,000 referees at all levels of football in England, PGMOL’s scope is limited to those tasked with officiating in the uppermost, professional competitions: namely the Premier League, the FA Cup, the Championship and Leagues One and Two.
Generally, referees who officiate in the Premier League and Championship are part of PGMOL’s “Select Group”. These officials are engaged by PGMOL under full-time contracts of employment. Those officiating in Leagues One and Two, however, are part of PGMOL’s “National Group” and are engaged on a self-employed basis alongside their main careers.
HMRC’s litigation specifically relates to the National Group – and there were 60 such officials operating in this way when the case first opened.
Following compliance activity, HMRC issued determinations – in other words, tax demands – to PGMOL in respect of the 2014/15 and 2016/17 tax years. These were a combination of PAYE and NIC and totalled £583,874.07 for the two years in question.
It was HMRC’s view that the National Group referees were in employment relationships with PGMOL and therefore should have been taxed as such. As the referees operated as sole traders, rather than through their own limited companies, PGMOL was the party held liable for any misclassification (although this has also subsequently become the case for many limited company engagements too, since the introduction of reforms to IR35).
HMRC’s case largely focused on two key arguments:
PGMOL refuted HMRC’s arguments, appealing against the determinations and consequently triggering the initial First-tier Tribunal hearing.
Their view was that the referees were legitimately self-employed and simply operated on a match-by-match basis rather than under a contract of employment.
They directly contested HMRC’s key arguments, stating:
The initial appeal was the starting point of a long tour up – and then back down – the tax court system.
The original First-tier Tribunal found that the referees were self-employed for tax purposes. The tribunal concluded that there was insufficient mutuality of obligation between the parties and that the level of control exercised by PGMOL was not consistent with an employment relationship.
Particular emphasis was placed on the fact that:
HMRC appealed to the Upper Tribunal, arguing that the First-tier Tribunal had misapplied the legal tests relating to employment status.
Although the Upper Tribunal identified some issues with the original reasoning, particularly around control, it ultimately upheld the decision that the referees were not employees for tax purposes.
At this stage, PGMOL had successfully defended HMRC’s challenge twice.
The case took a significant turn in the Court of Appeal.
The court held that the earlier tribunals had adopted an overly narrow interpretation of mutuality of obligation. In particular, it concluded that once referees accepted a match appointment in return for payment, the “irreducible minimum” of mutuality was generally satisfied.
The Court of Appeal also indicated that the degree of control exercised by PGMOL had been understated.
Rather than determining the final employment status outcome itself, the case was remitted to the First-tier Tribunal for reconsideration under the revised legal framework.
Before the remitted hearing took place, PGMOL appealed to the Supreme Court.
The Supreme Court largely upheld the Court of Appeal’s approach, delivering an important judgment on both mutuality of obligation and control. The court confirmed that:
However, the Supreme Court also stressed that these factors alone could not determine employment status. Instead, the relationship still had to be assessed “in the round”.
The matter was therefore remitted once again to the First-tier Tribunal, which we will now analyse in more depth.
The position reached by the Supreme Court reflects the long-established principles derived from Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968], which remains the foundation of employment status analysis in the UK.
Arguments are regularly made that a case approaching 60 years old should no longer form the bedrock of employment status determinations in the modern labour market. However, for now, Ready Mixed Concrete (RMC) remains the central judicial framework through which employment status disputes are assessed.
In RMC, the judge identified three core conditions – often also treated as sequential “stages” - typically associated with employment:
Crucially, the RMC framework requires tribunals to look beyond individual factors and consider the totality of the relationship. That principle became central to the reheard PGMOL decision.
At this stage it is probably important to note that established case law and HMRC’s interpretation do not necessarily go hand in hand. Indeed, one of the most significant aspects of the latest ruling is the extent to which it arguably reasserts the holistic nature of the RMC framework at a time when employment status analysis – and HMRC’s interpretation - can sometimes appear increasingly reductionist in practice.
In latter years it could be argued that HMRC’s focus has been very much on stages 1 and 2 of RMC, covering the well-known factors of personal service, mutuality of obligation and control. In practice, many advisers and businesses felt that where these factors were present, HMRC increasingly approached employment status from a presumption that employment existed.
But the reheard First-tier decision in PGMOL has effectively reaffirmed that RMC remains multi-factorial, holistic and – as the judge said way back in 1968 – that no single factor is determinative.
By the time the case finally returned to the First-tier Tribunal, several of the central employment status arguments had already effectively been resolved in HMRC’s favour.
The requirement for personal service was relatively straightforward in the context of professional football officiating. Referees were individually selected and appointed to matches, and there was no meaningful ability for them to provide substitutes in their place. The personal nature of the role therefore strongly supported the existence of personal service.
The position on mutuality of obligation changed significantly during the course of the litigation. Earlier tribunals had placed considerable emphasis on the absence of any ongoing obligation for PGMOL to provide work or for referees to accept appointments. However, the Court of Appeal and Supreme Court rejected the idea that broader continuing obligations were necessary before mutuality could exist.
By the time the case returned to the First-tier Tribunal, it was effectively accepted that sufficient mutuality of obligation existed in respect of individual match engagements. Once a referee accepted an appointment in return for payment, the minimum reciprocal obligations required for employment status analysis were present.
The tribunal also accepted that PGMOL exercised a significant degree of control over the referees and the wider officiating framework. This included control over appointments, training, conduct standards, fitness requirements, performance monitoring and disciplinary arrangements.
Importantly, the existence of control did not depend on PGMOL directing the referees’ split-second decision-making during matches. Consistent with the Supreme Court’s approach, the tribunal recognised that control in modern employment status cases extends beyond direct supervision of day-to-day tasks and can include broader organisational, procedural and regulatory control.
Taken in isolation, the presence of personal service, mutuality of obligation and a substantial degree of control might ordinarily be viewed as pointing strongly toward employment. Indeed, these are precisely the factors that frequently dominate modern IR35 and off-payroll working disputes.
However, the tribunal did not treat the existence of mutuality of obligation and control as binary or determinative concepts.
While the appeal courts had effectively established that both factors were present within the individual match engagements, the reheard tribunal still examined the nature, degree and practical significance of those factors when assessing the relationship overall.
In particular, the tribunal distinguished between the minimum mutual obligations necessary to satisfy the legal threshold for employment status analysis and the far broader, deeper and more enduring reciprocal commitments typically associated with employment relationships.
Similarly, although PGMOL exercised a material degree of organisational and procedural control, the tribunal carefully considered both the limits of that control and the substantial independent professional judgment retained by referees in practice.
This aspect of the judgment is especially significant in the wider IR35 context because it reinforces that employment status factors cannot always be reduced to simple “yes/no” tests. The weight attached to those factors - and the manner in which they operate in practice - may be equally important.
Despite accepting the presence of personal service, mutuality of obligation and a material degree of control, the tribunal ultimately concluded that the overall relationship remained inconsistent with employment.
Central to that conclusion was the tribunal’s assessment of the wider economic and practical reality of the arrangements between PGMOL and the referees. When viewed holistically, the relationship lacked many of the characteristics typically associated with employment.
The tribunal attached considerable importance to the absence of broader ongoing commitments between the parties. Although sufficient mutuality of obligation existed within individual match engagements, the wider relationship lacked the enduring reciprocal obligations commonly associated with employment. PGMOL was not required to provide future work and referees remained free to decline appointments. The engagements therefore retained an ad hoc and intermittent character inconsistent with traditional employment relationships.
The tribunal also considered the extent to which referees were integrated into PGMOL’s wider organisation. While they operated within an established officiating structure and were subject to performance standards and procedural requirements, the relationship lacked many of the broader features typically associated with employment, including organisational integration, continuity and wider participation in the business beyond individual appointments.
A further important consideration was the degree of independent professional judgment exercised by referees in practice. Although PGMOL maintained extensive procedural and regulatory oversight, referees retained substantial autonomy in carrying out their core officiating responsibilities. The tribunal appeared to regard this practical independence as inconsistent with the level of subordination typically associated with employment relationships.
The tribunal also examined the broader economic reality of the arrangements. Referees were engaged on an appointment-by-appointment basis, with no guarantee of future work or continuing income. The structure of the relationship therefore lacked the financial permanence and economic dependency more commonly associated with employment.
Perhaps most significantly, the tribunal’s reasoning demonstrated that employment status analysis remains fundamentally qualitative rather than mechanistic. The existence of personal service, mutuality of obligation and control did not automatically outweigh the broader factual matrix. Instead, the tribunal evaluated the relative weight, context and practical operation of those factors before concluding that the relationship, viewed in the round, remained one of self-employment.
While the facts of PGMOL were highly specific to professional football officiating, the tribunal’s reasoning is likely to have implications far beyond sport. In particular, the decision raises important questions about how employment status factors are interpreted and weighted in modern IR35 and off-payroll working disputes.
Following the Court of Appeal and Supreme Court decisions, there was a widespread perception across the status field that mutuality of obligation had effectively ceased to be a meaningful point of contention in employment status disputes. If an individual agreed to perform work in return for payment, the minimum threshold appeared satisfied.
However, the reheard First-tier Tribunal decision arguably reintroduces some nuance into that debate. While the tribunal accepted that sufficient mutuality existed within individual match engagements, it nevertheless distinguished this from the broader, deeper and more enduring reciprocal commitments commonly associated with employment relationships.
That distinction may prove particularly relevant in shift-based, assignment-led and intermittent working arrangements, such as bank healthcare staff, agency workers and platform-based labour models, where obligations may exist within individual engagements but the wider relationship remains fragmented and non-continuous.
More traditional contractor engagements operating on long-term day rate arrangements may struggle to derive significant support from this aspect of the decision, particularly given the appeal courts’ broader interpretation of minimum mutuality.
However, there may be greater relevance for genuinely project-based Statement of Work (SoW) engagements, particularly where the relationship is structured around finite deliverables and the absence of any expectation of continuing work beyond the scope of the project itself.
In such arrangements, PGMOL arguably supports a more nuanced examination not simply of whether mutual obligations exist, but of their duration, depth and overall significance within the wider relationship.
In that sense, PGMOL may demonstrate that while the threshold question of mutuality has narrowed, the degree and quality of mutual obligations can still carry material weight within the wider holistic status analysis.
One of the most significant implications of the PGMOL case in general may be the extent to which it broadens the modern interpretation of control within employment status analysis.
Historically, control was often associated with direct supervision over how, when and where work was performed. However, both the appeal courts and the reheard First-tier Tribunal adopted a much broader view, recognising that control can also arise through organisational structures, procedural requirements, performance standards and wider governance arrangements.
That distinction is particularly important in modern professional and regulated working environments, where highly skilled individuals may operate with substantial day-to-day autonomy while still remaining subject to extensive oversight frameworks.
In practice, many advisers have already observed a noticeable shift in HMRC compliance activity following the Court of Appeal and Supreme Court decisions in PGMOL. Increasingly, HMRC enquiries appear to focus not simply on direct managerial supervision, but on what might be described as a wider “framework of control” surrounding the engagement.
This can include:
The issue is particularly relevant within highly regulated sectors such as financial services, where FCA obligations naturally require organisations to impose extensive governance and oversight structures on anyone operating within regulated environments.
The difficulty, however, is that regulatory oversight and employment control are not necessarily the same thing.
A contractor operating within an FCA-regulated environment may be required to comply with strict governance standards, mandatory training requirements, information security controls and regulatory procedures, while still retaining substantial autonomy over how professional services are actually delivered in practice.
The reheard First-tier Tribunal decision in PGMOL arguably reinforces the importance of distinguishing between:
That distinction may become increasingly important in future IR35 and off-payroll disputes involving highly regulated industries.
Perhaps the most important broader lesson arising from PGMOL is the extent to which it reinforces the fundamentally holistic nature of employment status analysis.
Throughout the litigation, considerable attention was understandably focused on the presence of personal service, mutuality of obligation and control. However, the reheard First-tier Tribunal ultimately demonstrated that the existence of those factors alone was insufficient to determine the overall status outcome.
Instead, the tribunal examined:
That aspect of the decision is particularly important in the context of modern off-payroll compliance, where organisations are often required to assess large volumes of engagements across diverse working arrangements.
PGMOL does not suggest that structured or standardised status assessment processes are inherently problematic. Indeed, scalable assessment frameworks are an unavoidable feature of modern off-payroll compliance. However, the decision arguably reinforces the importance of ensuring that assessment methodologies remain genuinely holistic, fact-sensitive and capable of considering the practical reality of individual engagements.
In particular, the reheard tribunal’s reasoning demonstrates that employment status cannot always be reduced to a series of binary questions or isolated status indicators. The weight, context and practical significance of those indicators may be equally important.
That may prove especially relevant in highly skilled professional environments, where relationships can contain elements traditionally associated with employment while still remaining commercially and economically distinct from employment in the wider sense.
It is important to recognise that the reheard PGMOL decision remains a First-tier Tribunal ruling and therefore does not carry binding precedential authority in the same way as the earlier appeal judgments in the case. Furthermore, HMRC may yet seek permission to appeal aspects of the latest decision.
Nevertheless, the tribunal’s reasoning is likely to attract significant attention across the wider status and off-payroll working landscape, particularly given the importance already attached to the case at Court of Appeal and Supreme Court level.
The final PGMOL decision may ultimately be remembered less for the specific outcome involving football referees and more for what it reveals about the current direction of employment status analysis.
On one hand, the appeal stages of the litigation significantly strengthened HMRC’s position on mutuality of obligation and control, reinforcing a broader interpretation of both concepts within modern status disputes.
Yet despite those developments, the reheard First-tier Tribunal still concluded that the overall relationship remained inconsistent with employment when viewed in the round.
That tension is important.
For businesses operating within the off-payroll working regime, PGMOL serves as a reminder that employment status cannot be determined solely through the presence of individual indicators, however important those indicators may be. The practical reality, economic substance and overall character of the relationship remain central to the analysis.
The decision also highlights the growing importance of nuanced and genuinely holistic status determinations, particularly within highly regulated sectors where governance and oversight structures may increasingly be relied upon as evidence of control.
Perhaps most significantly, PGMOL reinforces a principle that has existed since Ready Mixed Concrete but can sometimes become obscured in modern compliance practice: employment status remains a qualitative evaluative exercise, not a purely mechanistic one.
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