The Supreme Court declared the decision of a cafeteria that prohibited its employees from accepting tips, on understanding that this constitutes a substantial modification of working conditions that must follow the procedures of article 41 of the Workers’ Statute. The ruling annuls a previous one of the Superior Court of Justice of Asturias and declares the right of the people affected by the collective conflict to continue receiving tips from the customers. In addition, it obliges workers not to exclude those temporary employees, who until now did not receive them, something that the High Court considers contrary to national and EU regulations.
The company, Serunión SA, which has five cafeterias in Asturias and about 110 workers, decided in 2018 to cancel the tip ‘cans’, something that was ratified by the Superior Court of Justice of Asturias. From that moment, the cash receipts announced that “tips are not allowed”, while, in turn, it explained that “our best reward is that you visit us again, that is why we do not accept tips.” This route supposed workers with an income of between 90 and 100 euros per year. In addition, the employees did not receive a written notification from the company “in the terms contemplated in the current legislation.”
The Supreme Court upholds the appeal presented by CC.OO. and it explains that the Asturian Supreme Court “has deduced from the extra-salary nature and the very free ontology of the tip the impossibility that it constitutes a work condition whose alteration must be subject to the rules of such figure.” That is why he explains that “the elimination of this profit opportunity by the company constitutes a relevant change, not so much in its economic dimension (always uncertain) but in aspects related to the work environment and the existence of incentives or honorary rewards ».
The Supreme Court points out that “the company can validly agree to prohibit its staff from being rewarded by the clientele, as it derives from its power of organization and direction (arts. 1.1 and 20.1 Workers’ Statute). Now, when this possibility of economic gain and moral reward pre-exists, it must follow the procedure established for that purpose by article 41 of the Workers’ Statute, since it is faced with a work condition whose elimination has relevance from various perspectives.
The sentence has had the support of four of the five magistrates who have signed it. The dissenting opinion considers that the appeal should have been dismissed considering that “the employer could make his decision without having to resort to the procedure provided for in article 41 ET, fundamentally because it was a condition of the relationship with his clients and because the The effects of such a decision on permanent workers were of low value and significance, which prevented, as previously stated, its consideration as a substantial modification, taking into account the reiterated and established criteria of our jurisprudence ”.
In addition, this magistrate points out that “the fact that the business decision, (located, it is insisted, within the scope of its commercial relations with clients and its commercial policy) could lead to damage for the workers, this would imply the need to compensate for such damage, even if it was of a small amount; compensation that could have been fixed through negotiation with the workers’ representatives and, failing that, by agreement or, in the last case, by jurisdictional fixation ”.