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.
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.
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 lo