Who’s the self-employed independent contractor in the black?

It is likely that many a football fan will have joked about issuing a formal complaint to a referee’s employer following dubious performances throughout the season. However, the question of whether match officials are actually employees of their respective Football Associations is not as straight forward as you would first think, as has recently been confirmed in the case of Conroy v Scottish Football Association.

In the case, which was considered by an Employment Appeal Tribunal, Mr Conroy, a top level Scottish referee, issued claims against the Scottish Football Association for unfair dismissal, age discrimination and holiday pay. The Scottish FA however argued that Mr Conroy was self-employed and was therefore not entitled to issue such claims. An employment tribunal had previously found that he was not an ‘employee’ for the purposes of the Employment Rights Act 1996. However, it had held that he was an ‘employee’ for the purposes of the Equality Act 2010 and a ‘worker’ for the purposes of the Working Time Regulations 1998. Mr Conroy appealed against this decision. The Appeal Tribunal have dismissed this appeal however and have upheld the original decision. Accordingly, Mr Conroy is unable to pursue his clam for unfair dismissal. However, he is still able to pursue the claims for age discrimination and holiday pay.

In making this finding, the fact that Mr Conroy purchased his own equipment, such as flags and whistles, was taken into consideration. Additionally, attention was drawn to the fact that the Scottish Football Association were not obliged to offer any fixtures to the match official and he would not be disciplined for withdrawing from fixtures. Although the FA provided private medical care and insurance cover, they did not pay any sick pay and Mr Conroy was responsible for his own tax. Finally, it was noted that Mr Conroy had a full time job, although it was noted that he was paid £213,000 each season for officiating at matches.

The result of this finding means that, although Mr Conroy still has several options still available to him, he will be unable to pursue a potentially lucrative claim for unfair dismissal. Although on first viewing it would be easy to say that the question of whether a referee is employed by a Football Association is a simple one, as is often the case with employment law issues a lot depends on the facts specific to the case.

So the next time you feel the urge to hurl abuse at a match official for making what is perceived to be an incorrect decision, have some sympathy for them. They are choosing to give up a lot of time without actually becoming employees and benefiting from the receiving of employment rights in return. And those flags aren’t cheap either, even if you are being paid £213,000 a season.

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