Revenue And Customs Commissioners V Annabel’s (Berkeley Square) Ltd

''Revenue and Customs Commissioners v Annabel's (Berkeley Square) Ltd'' EWCA Civ 361
is a UK labour law">009
EWCA Civ 361
is a UK labour law case regarding the treatment of tips under the National Minimum Wage Act 1998. It led to the abolition of tips being considered part of wages for the purpose of assessing compliance with the national minimum wage.The National Minimum Wage Regulations 1999 (Amendment) Regulations 2009 (SI 2009/1902) reg 5 has removed the words "that is not paid through the payroll", which means that tips now cannot be taken as part of the employer's obligation to pay the minimum wage

Facts

Workers at a club named Annabel's on Berkeley Square, in London's Mayfair, as well as George (Mount Street) Ltd and Harry's Bar Ltd had a " troncmaster" in charge of tips. Tips would be distributed to all the employees based on length of service under a points system. The troncmasters were the senior managers, and were given the job by the employer.

Her Majesty's Revenue and Customs (HMRC) issued National Minimum Wage Act 1998 (NMWA 1998) s. 19 enforcement notices, saying that the employer was not entitled to deduct the amounts distributed through this system from the workers' wages. It argued that the tronc system did not count under the National Minimum Wage Regulations 1999 (NMWR 1999) r. 30(a) as "money payments paid by the employer to the worker". NMWR 1999 rr. 31–37 set out the reductions allowed and r 31(1)(e) said that money "paid by customers by way of a service charge, tip, gratuity or cover charge that is not paid through the payroll" is not a legitimate reduction.

The amounts claimed to be outstanding were £49,862.45, £48,901.97 and £28,738.47 at the respective restaurants (so around £125,000). The employer's argument was that since the troncmaster was always contractually bound to distribute the money, or was the employer's agent and appeals about the process would always go to the employer, it never became the employees' money. In the alternative, the troncmaster was holding the money on a primary trust to pay the employees, or failing that for the employers, a Quistclose trust. HMR's argument was that when the money was handed over to the troncmaster, in his capacity as such, there was a trust for him to pay the money to the employees. Although the money started as the employer's, when given to the troncmaster, this meant the money was no longer being paid under r. 30(a) "by the employer".

Mr Edge in the Employment Tribunal held that the tronc payments could be a part of the minimum wage and rescinded the enforcement notice, but Wilkie in the Employment Appeal Tribunal (EAT) held they could not.

Judgment

Rimer upheld the EAT, and preferred HMRC's arguments, holding that the tips were not part of the pay and the restaurants were in breach of the National Minimum Wage Act 1998.

Mummery and Sullivan concurred.

Significance

Although the 2009 Statutory Instrument changed the law, it has been reported that many employers are breaching the new law and sticking with their old practice of taking their workers' tips.G Snowdon and M King,
Law to stop restaurants misusing tips has failed, union claims
(1 October 2010) The Guardian

See also

*National Minimum Wage Act 1998

References

{{reflist, 2

United Kingdom wages case law
Court of Appeal (England and Wales) cases
2009 in United Kingdom case law