Employment reference

In order to bring a claim for unfair dismissal, claimants have to show that they are employees. In Conroy v Scottish Football Association Ltd, the Employment Appeal Tribunal (EAT) held that football referees are not employees as they do not have a contract of employment as defined by section 230(1) of the Employment Rights Act 1996.

Basic facts

Mr Conroy, a full-time doctor with an NHS Trust, also worked as a part-time referee for the football association in Scotland. Every year in advance of the football season, Mr Conroy received a letter from the association, confirming that he was an independent contractor, responsible for paying his own income tax and national insurance.

There was no obligation on the association to offer Mr Conroy any matches at which to officiate, nor could he be disciplined for withdrawing from a match. He could not, however, send a substitute. He was paid a fee for officiating, unless the match was cancelled. The association provided him with clothes to wear during matches (paid for by sponsorship), but he had to provide his own stopwatch, flags, red and yellow cards, whistles, and notebooks. He also had to attend several periods of unpaid training every year. He did not receive sick pay but he was offered BUPA care and insurance.

The football association had an observer at each premier league match and some lower league games to assess a referee’s performance, but it could not interfere during the match which was under the control of the referee. Referees were not subject to the association’s disciplinary procedure.

Mr Conroy lodged claims for unfair dismissal, age discrimination and holiday pay.

Tribunal decision

The tribunal found that although Mr Conroy was a worker as defined under the Working Time Regulations 1998 and an employee under the Equality Act 2010, he was not an employee under section 230(1) of the Employment Rights Act 1996 (ERA) as he did not have a contract of employment with the association.

This was because there was no obligation on the association to offer “work” and no obligation on Mr Conroy to accept it; the association did not have control over him when he was officiating (the role of observer was to monitor his performance, not to direct his conduct during a match); and he had to pay his own tax.

As Mr Conroy was not an employee, he could not claim unfair dismissal, but he could pursue his claims for age discrimination and holiday pay. Mr Conroy appealed against the decision that he was not an employee for the purposes of the ERA.

EAT decision

The EAT dismissed his appeal, concluding that the employment judge had not made any errors of law from her findings of fact.

She had, admittedly, found one or two facts which could be indicative of employment, for example the provision of BUPA healthcare, but had found many others which did not. For instance, the lack of disciplinary procedures; the fact that Mr Conroy could turn down games and the association did not have to offer any; and the fact that he had to buy all the flags and “other paraphernalia” necessary for the game. Just because the association was a governing regulatory body providing referees for football matches played under its jurisdiction which had standards and rules which a referee had to meet and adhere to, that did not mean Mr Conroy had become their employee.

The judge had “carefully weighed all of her factual findings up and came to a decision which she was entitled to reach”. Having made these findings, the judge had correctly categorised the arrangement between Mr Conroy and the association as one which did not involve a contract of employment.