Referees shown a red card by the EAT

29 Aug

Whilst sat watching the 50th anniversary edition of Match of the Day with the football season upon us again, the recent(ish) case of Conroy v Scottish Football Association Ltd (UKEATS/0024/13/JW) caught my attention.

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Football Referee

Whilst sat watching the 50th anniversary edition of Match of the Day with the football season upon us again, the recent(ish) case of Conroy v Scottish Football Association Ltd (UKEATS/0024/13/JW) caught my attention.

The Claimant, Stephen Conroy, brought a claim for unfair dismissal, age discrimination and holiday pay against the Respondent, the Scottish Football Association Ltd. The Employment Judge had determined that Mr Conroy was not an employee for the purposes of his unfair dismissal claim but that he was for the purposes of the Equality Act 2010 claim and that he was a worker for the purposes of the Working Time Regulations 1998. The Claimant appealed the decision that he was not an employee for the purposes of the Employment Rights Act to the EAT but the decision was upheld.

Mr Conroy was a football referee as well as a medical doctor. The Respondent was the governing body of football in Scotland with responsibilities relating to the refereeing of matches, requiring all referees to register with it. The Respondent FA contended that Mr Conroy was not an employee but rather a self-employed independent contractor in both the ET and the EAT.

The EAT determined that the Employment Judge had looked at the whole factual matrix before making her determination as to whether Mr Conroy was an employee or not. It was only after painting a full picture of the facts and the relationship between the two parties that the Tribunal was able to step back and look at the ‘big picture’. The EJ had considered that whilst there were some aspects of the relationship that pointed towards a contract of employment, for example the provision of BUPA health care, there were ultimately factors that defined the relationship as a contract for services creating no mutuality of obligations.

There was no requirement on the SFA to offer any matches to Mr Conroy, nor was there any requirement upon him to accept officiating any games. The classification letter sent to Mr Conroy clearly set out the relationship between the parties in the following way:

‘Your relationship to the SFA will be that of independent contractor and nothing in this letter shall render you an employee, worker, agent or partner of the SFA and you shall not hold yourself out as such. This letter constitutes a contract for the provision of services and not a contract of employment.’

The EJ had correctly stated that although the fact that the letter set out the position in the terms that it was a contract for the provision of services this was not necessarily determinative but it was a factor to be taken into account. Further, whilst the SFA paid some of the fees owed to Mr Conroy, when he worked for UEFA he was paid directly. Mr Conroy was responsible for the Tax and NI payments from his work as a referee and declared it as ‘self-employed’ income on his tax returns. Mr Conroy was provided with kit to wear, which might have suggested employment, but was then expected to provide his own flags, red/ yellow cards etc, which pointed away from a contract of employment. There was no provision for sick pay if Mr Conroy was unable to officiate a match due to illness.

The conclusion of Stacey HJJ that the EJ had not erred in law and that it is possible for a governing body such as the Scottish FA “to have standards and rules which a referee must meet and adhere to without him being employed by it” amounts to a red card for referees diving in the box seeking to rely upon the Employment Rights Act 1996.

Gemma White

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