Despite another disappointing World Cup performance, we turn our attention to referees – no, not to comment on some rather dubious decision making during the World Cup, but to ask the question: are referees, employees?
In Conroy v Scottish Football Association, Mr Conroy was a full time doctor and part time football referee. He had a contract with the Scottish Football Association (FA), which required him to maintain a certain level of fitness and skill training as well as stating he would be paid for each match he refereed. When the Scottish FA sought to end its relationship with Mr Conroy, he brought claims for unfair dismissal, age discrimination and holiday pay. The question before the Employment Tribunal was whether Mr Conroy was an employee of the Scottish FA?
The Employment Tribunal judge looked at Mr Conroy's working relationship in detail. When looking at Mr Conroy's relationship with the Scottish FA, the judge found some factors indicated he was an employee, such as providing Mr Conroy with private medical insurance and not allowing him to send a substitute referee to the match. However, his contract stated that he was an independent contractor; he purchased his own equipment and had the right to decline matches if he wished.
Taking these factors into account, the judge held that there was not a sufficient level of "mutuality of obligation" and control exercised by the Scottish FA for there to be a contract of employment between them. However, the judge did find he was a worker for the purposes of the Working Time Regulations and therefore was entitled to his holiday pay.
On appeal, the Employment Appeal Tribunal (EAT) upheld the Employment Tribunal judge's decision. The EAT found that the Scottish FA acted as a governing regulatory body for the provision of referees and that it was "perfectly possible for such a body to have standards and rules which a referee must meet and adhere to without being employed by it".
The issue of whether a worker is or is not an employee or a worker will always be a question of fact and Employment Tribunals will look at the working relationship in the round. Factors such as whether there is an obligation to offer and accept work, whether the worker has to perform their services personally and who controls what the worker will all be taken into account. It is also a reminder that even if a worker is not entitled to employment rights, they could still qualify for holiday pay as a worker.
Reminder: Don't Be Caught Off-Side
Although the England team's football dreams are over for another tournament, World Cup fever still continues. Don't forget to read our newsletter on how to manage the impact on your workforce here.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.