This week’s case round-up
Tips can count towards wages
Nerva and others v United Kingdom 2002, IRLR 815 ECHRn
The applicants were all waiters. Any cash tips from customers were collected
and distributed to waiters proportionately at the end of each week, but any
tips left by cheque or credit card were paid to the employees as part of their
wages. These tips were described as ‘additional pay’ on payslips, and were
subject to PAYE deductions.
The employees sought to challenge their employer’s practice of
counting the tips towards their statutory minimum remuneration. The Court of
Appeal held that legal property in the cheque and credit card tips passed from
the customer to the employer, and could therefore count towards the minimum
remuneration.
The employees complained to the European Court of Human Rights,
alleging that the Court’s decision was contrary to the right to peaceful
enjoyment of possessions, under the Convention on Human Rights.
The ECHR ruled that there had been no breach of the employees’
convention rights. The employer had complied with its obligation to pay a
minimum wage, and the employees could not claim that their remuneration should
be calculated without tips.
While the legal basis for this decision appears sound, the
broader moral question of customers’ intentions when leaving tips was also
considered by the court.
Transsexual discrimination
A v Chief Constable of West Yorkshire Police and another 2002, EWCA Civ
1584, Court of Appealn
The legal rights of transsexuals have been further reinforced by this recent
decision.
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Ms A, a male to female transsexual, applied to join the police.
Her application was declined on the basis that she would be unable to perform
all the required duties, since she remained legally male and would not be permitted
to search female detainees.
Ms A brought a claim of sex discrimination. The police argued
that conformity of legal and apparent gender was a "genuine occupational
qualification" for the job (s7(2) Sex Discrimination Act 1975), but the
tribunal disagreed. The police successfully appealed to the EAT. Ms A appealed
to the Court of Appeal, citing the recent European case of Goodwin v UK, which
ruled that a post-operative male to female transsexual was entitled to be
regarded as legally female. The appeal was upheld. Following Goodwin, it was no
longer possible to regard Ms A as being other than female, except perhaps in
circumstances where there were significant factors of public interest to weigh
against the interests of the individual. The police could not refuse Ms A
employment on the grounds of her transsexuality and should treat her as they
would any female applicant.
