From: Neil Foster <neil.foster@newcastle.edu.au>

Sent: Tuesday 17 September 2024 02:50

To: obligations@uwo.ca

Subject: ODG: UKSC on employee status

Dear Colleagues;

The recent ruling of the UKSC in Commissioners for His Majesty's Revenue and Customs v Professional Game Match Officials Ltd [2024] UKSC 29 (16 Sept 2024) seems quite an important one for the definition of the common law concept of employment, which of course is key to a number of private law issues, including vicarious liability.

The case involved the common law employment status of professional football match referees in a group called the National Group , who were engaged on a week at a time basis to referee at specific matches. They would be offered a match about a week ahead of time, had no obligation to accept the offer and even once they had, could pull out before the day without penalty (or the offer could be withdrawn by PGMO). When they did turn up for a match had to provide refereeing services, of course, and provide a match report afterwards. HMRC said they were employees, the organising body PGMO said they were not- no mutuality of obligation and not sufficient control exercised.

LORD RICHARDS (with whom Lord Hodge, Lord Leggatt, Lord Stephens and Lady Rose agree) holds that the referees were employees. Mutuality was satisfied even though they could pull out during the week before:

[56] it does not follow from the right of either party to cancel the engagement without penalty that, while the contract remained in being, the parties were not under mutual obligations to each other. On the contrary, those mutual obligations existed from the time of acceptance of the match, unless the engagement was terminated.

The fact that PGMO could not control in detail what the referees did during the match did not negate an employment contract. Lack of moment by moment intervention by the employer was not the test. Lord Richards affirmed the test laid down by Dixon CJ and others in the High Court of Australia decision involving trapeze artists, Zuijs v Wirth Brothers Proprietary, Ltd (1955) 93 CLR 561, 571 :

[64] Zuijs has been an influential authority in this country and the statement that what matters is lawful authority to command so far as there is scope for it if only in incidental or collateral matters has been frequently quoted, for good reason

In this case there was a sufficient framework of control :

[88] the Court of Appeal was correct to say that the combination of contractual obligations imposed on referees as to their conduct generally during an engagement from the time that a match was accepted to the submission of the match report, and as to their conduct during a match, was capable of giving PGMOL a framework of control sufficient for the purposes of meeting the control test for employment purposes.

While Zuijs is cited regularly, it is interesting that no reference is made to the two major recent HCA decisions on employment status handed down in 2022, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2. The issues however were different- in those cases the question was the relevance of written agreements in the context of the practical carrying out of the agreements. Still, it seems fairly clear that the UKSC generally is more willing these days to find employment status than is the case with the HCA. See at [92] here the reference to the need to consider all the surrounding circumstances .

Regards

Neil

NEIL FOSTER

Associate Professor, School of Law and Justice

College of Human and Social Futures,

University of Newcastle, NSW

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

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