Following the end client's rules and regulations

Following the end client’s Rules and Regulations – Does this Constitute Excessive Control?

In a recent Tribunal hearing between Professional Game Match Officials Ltd (PGMOL) and the Commissioners for HMRC, heard in July 2018, it was determined that referees were genuinely self-employed, and not employees of PGMOL, despite the fact that they were governed by certain rules and regulations, laid out by the FA, with whom they were required to register in order to referee a football game.

This is in complete contrast to Christa Ackroyd Media (CAM) Ltd vs HMRC, whose case was heard at Tribunal in September 2017. The case was found in favour of HMRC, and one of the key arguments was that CAM Ltd could not be found to be genuinely self-employed due to the work being governed under a certain level of control by the BBC’s editorial guidelines;

“The BBC’s editorial Guidelines encapsulate the values of the BBC and the editorial standards that every producer of BBC content is expected to follow….It is HMRC’s case that Ms Ackroyd was contractually bound by the Editorial Guidelines and that this is one aspect of the BBC’s control over Ms Ackroyd’s work.”

This is despite the fact that Ms Ackroyd did have control over the work she undertook for the BBC, which was accepted by HMRC;

“We are satisfied that Ms Ackroyd had a high degree of autonomy in carrying out her work and in identifying the stories she wished to follow…,” however this was not sufficient because it was determined that the BBC would have the final decision over the work provided by CAM Ltd. 

With regard to the PGMOL case, the responsibility of the FA was to ensure that:

“match officials, uphold standards and apply the laws of the game. Referees may not officiate in any affiliated match or competition unless they are registered with the FA…By registering, a referee agrees to become bound by the FA’s rules and regulations…All the FA’s rules and regulations are set out in a lengthy handbook published before the start of each season. Breaches of FA rules including failure to apply the laws of the game can lead to disciplinary action by the FA.”

So, clearly in similarity to the CAM Ltd case, there were very strict rules and regulations to follow due to the nature of the work being provided. Additionally, referees were required to do what was asked by PGMOL, including the requirement to participate in training and fitness programmes, attend all meetings and be available for appointments, and wearing official uniform.

What is also very similar in both cases was that there was no right to provide a substitute, which is why the decisions hinged very heavily on control.

The issue of having to follow rules and regulations was considered in 1968 in the seminal case of Ready Mixed Concrete vs Minister of Pensions and National Insurance. In this case, Mr Latimer, who was a haulier with his own truck, had to wear a uniform provided by the client for whom he was providing services and had to adhere to the client’s rules on maintenance of the truck which had to be painted in the colours and signs directed by Ready Mixed Concrete.

It was determined that the rules and regulations which had to be obeyed by Mr Latimer were mainly relating to health and safety, and that the issue of control was “merely one factor among many to be considered.” In this case, Mr Latimer did have a right to provide a substitute which would have added weight to the argument for self-employment.

There are further disparities to be drawn from the CAM Ltd and PGMOL cases. For example, with the referees engaged by PGMOL, it was found that on the match date, the referee assigned to the match would be ultimately responsible for their decisions and would have the final say.

There were no suggestions that PGMOL could intervene in these decisions and be able to remove the referee and replace him with another, or change these decisions; the most they would be able to do would be to offer advice to the referee; this is not an indication that there is a form of control present, as any decision is still ultimately the referee's. In contrast with CAM Media, the BBC did have the final say over the work and although the BBC may not have regularly imposed their direction over the work carried out by CAM Ltd, they had the right to do so at any time.

It is the weight to be given to complying with certain rules and regulations which does not seem to have been applied equally, in the cases mentioned herein. In CAM Media, the fact that Christa Ackroyd had to follow the BBC’s editorial guidelines seemed be a determining factor whereas in both Ready Mixed Concrete (1968) and PGMOL (2018), it was one factor to be considered.

In the Ready Mixed Concrete case, Judge MacKenna J did however make an important distinction in stating that “where the arrangements leave the driver-owners so much responsibility for investment and management as here, they must be held to be independent contractors.”