Mutuality of Obligations

September 20th, 2021

HMRC v Professional Game Match Officials (2021) EWCA Civ 1370 concerns football referees. Elizabeth Laing LJ addresses the question of sufficiency of mutuality of obligations in order for there to be a contract of employment, giving rise to an employer obligation to deduct tax and national insurance contributions. From para 49 -69 inclusive she reviews the appellate authorities.  She states in relation to mutuality of obligations:-

“118. McMeechan, Clark, Carmichael and Prater, which bind this Court, are all cases in which the Court considered, in one way or another, the relationship between mutuality of obligation in an overarching contract and in a single engage engagement.  They establish at least three propositions.

i. The question whether a single engagement gives rise to a contract of employment is not resolved by a decision that the overarching contract does not give rise to a contract of employment.

ii. In particular, the fact that there is no obligation under the overarching contract to offer, or to do, work (if offered) (or that there are clauses expressly negativing such obligations) does not decide that the single engagement cannot be a contract of employment. The nature of each contract is a distinct question.

iii. A single engagement can give rise to a contract of employment if the work which has in fact been offered is in fact done for payment.

119. Those authorities do not support any suggestion that the criterion of mutuality of obligation is the sole, qualifying test for the existence of a contract of employment, so that if there is some mutuality, but it is not the right kind of mutuality, there can be no contract of employment.  On the contrary, those authorities, and the other authorities to which we were referred, suggest that the court has to look at all the circumstances in the round before deciding whether or not there is a contract of employment. The Court of Appeal in McMeechan specifically rejected a submission to that effect by the Secretary of State. The Court of Appeal in Prater rejected similar submissions by the appellant council in that case.”

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