What is the employment status of British football referees?Jeremy Lewis
Given the intense scrutiny to which the performance of the modern day top referee is subjected, tensions inevitably arise if a referee feels there is a lack of support from the governing body. A thick skin is part of the job description. But it is not difficult to see how a referee may feel undermined, and that constructive dismissal claims could arise if employment status could be established.
In broad terms, UK employment law draws an important distinction between (a) employees under a contract of service, (b) self-employed people who are in business on their own account and undertake work for their clients or customers, and (c) an intermediate class of “workers” (but referred to still as employees in discrimination legislation) who are self-employed but do not fall in the second class.3 A growing list of rights has been afforded to the intermediate category of worker. These include protection against discrimination under the Equality Act 2010 (where there is an expanded definition of employee4) and for part time workers5, whistleblowing protection6; detriment on the grounds of union membership or activities7, national minimum wage protection8, the right not to suffer an unauthorised deduction of wages9, protection under the Working Time Regulations 1998 (including annual leave entitlement10) and, arguably, rights in relation to transfers of undertakings other than unfair dismissal11. Generally12 a common denominator for employees and the intermediate category of “workers” is an obligation to carry out the work personally. Various considerations have then been developed to help distinguish this intermediate class from other self-employed workers, including whether the person is in a subordinate or dependent position (a test developed in discrimination cases, but sometimes applied in other contexts13), whether the dominant purpose of the contract was the provision of personal services, or whether the person markets their services generally or works as an integral part of the employer's operations14.
However the rights available to employees under a contract of service remain significantly more extensive. They include unfair dismissal protection, the right to redundancy payments and certain protections against detriment (e.g. for requesting flexible working under s.47F Employment Rights Act 1996 (ERA)). A key distinction is the requirement for employment status that the employer has a sufficient degree of control in the sense of the power to direct what the employee does15. There may though still be other elements of the relationship that, looking at the picture in the round, are inconsistent with a contract of service.16 Relevant (though not determinative) factors typically include whether the individual was integrated in the employer’s business, whether the individual provides their own equipment, the degree of financial risk undertaken and the degree of responsibility for investment and management and whether there is an opportunity to profit from sound management in the performance of the task17. The label put on the relationship by the parties is not determinative, though it may be important in a marginal case18.
In conventional terms, there was a good argument in Steve Conroy’s case that the level of control was indicative of an employment relationship. Referees are required to comply with all reasonable instructions, directions and guidelines of the SFA. Whilst the SFA cannot interfere with their decisions during the course of a game, an observer assesses performance in each SPL game. There was also an obligation to co-operate with post-match compliance procedures. Yet despite this, his EAT upheld the ET’s conclusion that he was not an employee.
On one view, the decision leaves open the potential for further such claims by other referees. Essentially the EAT followed the orthodox approach that it was for the ET to evaluate the position, painting a picture from the accumulation of detail. As such it is open for a referee to invite another tribunal to take a different view. But the EAT also emphasised that the factors indicating control had to had to be seen in the context of the role of a sport’s governing regulatory body. Such a body can impose standards and rules without the necessity of an employment relationship. There were other relevant factors pointing against employment status, including the lack of disciplinary procedures, a referee’s ability to decline an offer to officiate at games and the SFA’s right to refrain from offering games, and that he was required to buy his own equipment such as flags for the game. It may be possible to argue that the decision can be distinguished if those factors do not apply. But otherwise in practice the route to an unfair dismissal claim is likely to be blocked.
However there was no appeal against the decision that Mr Conroy was a worker for holiday pay and an employee for discrimination purposes. The way remains open to such claims or others based on the various rights afforded to the intermediate category of worker. Indeed, the FA and SFA have been adapting to this, as reflected in decisions such as abolition of compulsory retirement age, following an employment tribunal decision in 201019 that a retirement age of 48 constituted unlawful age discrimination.
Similarly, and rather aptly, protection against whistle-blowers applies to referees as workers20. A myriad of matters that might be contained in a referee’s match report, from serious foul play to the condition of the pitch, might be believed to show health and safety has been endangered and be a protected disclosure (under s.43B ERA). Demonstrating that the disclosure is in the public interest is unlikely to be a problem in this context. Whether it could ever be shown that a detriment was imposed by reason of such a report is another matter. The issue might though arise in the context of the outcome of any related complaint as to the referee’s performance.
Lack of employment status potentially has other implications. Thorny issues may arise as to whether there can be vicarious liability for negligent failures of a referee, for example from injury caused by failure to control the game properly. Such a claim succeeded against a rugby referee in Vowles v Evans and others21. In that case, vicarious liability was accepted, and the issue focussed on whether there was a duty of care. Traditionally vicarious liability has applied to employees. But the modern approach is to consider various indicia as to whether the relationship is sufficiently akin to employment to determine whether it is fair, just and reasonable to impose vicarious liability22. The factors which persuaded the tribunal in Mr Conroy’s case that there was a lack of sufficient control for an employment relationship, and in particular the inability to interfere with the referee’s decisions during a game, are also likely to be persuasive if this issue does arise.
But for now unfair dismissal claims involving referees are likely to be of the red card, not the employment tribunal, variety.
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- Tags: Employment Appeals Tribunal | Employment Law | Employment Rights Act 1996 | Employment Tribunal | Equality Act 2010 | Football | National Minimum Wage Act 1998 | Scotland | Scottish Football Association | The FA | Trade Union and Labour Relations Act 1992 | United Kingdom (UK) | Whistleblowing
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