30 September 2021 
Julia Ascott, Employment Taxes Specialist
You may have recently read that the Court of Appeal has sent the PGMOL case back to the First Tier Tribunal on the basis that the original decision had erred in law.
PGMOL had initially won their case at the FTT and Upper Tribunal that certain match officials were self-employed, relying (in part) on the argument that there was very little mutuality of obligation between the parties. The Court of Appeal overturned this position on the basis that once the contract began, mutuality was clearly present and means that the case goes back to the FTT.
The Court of Appeal cited Stephenson v Delphi Diesel Systems Ltd regarding mutuality of obligation,
“…when the person is actually working, a contract must exist because the person undertakes to work, and the employer, to pay for that work. The existence or otherwise of obligations to offer work, or do to it, if offered, was irrelevant to the question of whether there is a contract while the work is being done. On such a case, the only question was whether there was sufficient control.”
This suggests that the Court of Appeal agrees with HMRC’s interpretation of mutuality; if a contract exists, the worker carries out work and the engager must pay for that work, this would be enough to argue that there is sufficient mutuality of obligation between the parties.
This is unfortunate as the UT had provided useful clarification for the often complex concept of mutuality of obligation. We are once again left to wander in the woods until either this or another case provides a coherent and practical solution.
PwC have produced a flyer setting out their view on the implications of this decision. But if you have time (and access), we recommend reading through Croner-i’s case report for a more comprehensive report.
