On June 17, 2021, by means of Ruling rec. 635/2021, the Supreme Court declared null and void the unilateral decision of a certain restaurant company to prohibit the acceptance of tips from its customers, on the grounds that it is a substantial modification of working conditions and, to that effect, it must follow the procedures of Article 41 of the Workers' Statute (hereinafter, "ET").
On the formal basis that summarizes this judgment, it is debated whether a collective catering company may have, on a discretionary basis, the power to collect tips from the employees of its establishments.
To this effect, it is evident, notorious and indisputable that tips have an extra-salary nature since, as stated in the judgment, "(...) the tip is the donation of money that the employer's customers (not the employer) give to the employees of the establishments as a mere liberality, without any legal obligation, and is directly related to the greater or lesser satisfaction generated by the services rendered in each establishment, whether they are punctual or continuous".
In this sense, in order to qualify the substantiality of a modification, it must be weighed from the triple perspective: i) its qualitative importance; ii) its temporal scope and iii) the eventual compensations that could be established.
The High Court, in its Fourth Legal Basis, makes it clear that, in this case, it has been proven that the receipt of tips had become a more beneficial condition for the workers and with their cancellation, by unilateral decision of the company, a possibility of supplementary income is eliminated, "ending a well-known practice in the sector, and aborting the possibility of enjoying the moral recognition of the quality or dedication in the work performed".
Likewise, the Supreme Court reasoned that its amount, like its very existence, is completely uncertain, since it depends on the free will of third parties, and its economic value cannot be calculated on the basis of what has happened in the past.
Finally, the Supreme Court declares not only the nullity of the decision adopted by the company on the warning of such gratuities, but also the right of the workers affected by the collective conflict to continue receiving such bonus, "without excluding" those who are employed under a temporary contract, because "(...) it is clear that different treatment is being given depending on the duration of the contract, a rule contrary to various EU and national rules (Article 15 ET)".
