Andrew Hubbard

Written by: Andrew Hubbard

Andrew Hubbard

Consultant

Tribunal rules that a referee's decision is final

The referee's decision is final – so says law 5 of the rules of the sport. However much people scream abuse from the terrace or at the TV screen nothing can change the decision. While he or she is on the pitch the referee is answerable to nobody. 

As somebody who has not the slightest interest in football, I find it odd that I should be considering such things, but as with everything in life if you look hard enough you can find a tax angle. A recent tax case has considered the tax status of a group of football referees and has come to the conclusion that they are not employees and therefore not subject to PAYE

As we have discussed many times before there is no single test for determining employment status but control is one of the critical factors. If the person who you are working for can control what you are doing you are likely to be an employee. 

Because the independence of the referee is fundamental to the way that the game works, once they are on the field of play referees have complete autonomy. This meant, the tribunal decided, that this group of referees were not employees. They might have been workers, and hence have some employment rights, but they were not subject to PAYE.

Employment status is never out of the news these days and we are likely to see further headlines following the announcement that an appeal is to be made in the Christa Ackroyd case – she was the BBC presenter operating through a personal service company who was found to be subject to the IR35 rules. 

In a further twist to what is already a confused position, it is reported that one of her arguments will be that in reality she was employed directly by the BBC, effectively bypassing her personal service company. 

On the face of it this seems a very odd position to take because her primary argument is that there was no employment relationship at all. But on reflection it is perfectly logical. In employment status cases the key point of contention is not so much how much tax is paid, but who pays it. If IR35 applies, then it is the service company (in effect the individual) who has to pay the tax, but if there is a direct employment relationship then the employer – in this case the BBC – would have to meet the liability via PAYE.

These are complex issues and beyond the scope of this briefing note. But in any of these cases always ask yourself the question 'who will end up paying?'. Sometimes the engager and end-user will both want the same outcome, but more often their positions are directly opposed to each other. 

Perhaps it will take a decision of the Supreme Court – whose decisions (at least post-Brexit) are as final as those of a football referee – to sort it all out. If there were a Match of the Day special presenting live coverage of the case I’d watch!

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