The Employment (Allocation of Tips) Act 2023 sets out a new legal framework for the fair allocation of tips. A new Code of Practice is to be introduced and employers will have a legal obligation to adhere to the Code. It will set out the principles of fairness and transparency and will reflect the different ways in which tips are reasonably collected by employers and distributed to workers.
A customer may pay extra as a tip, a service charge or a gratuity. A tip or gratuity is a voluntary payment that the customer has no obligation to pay. Increasingly, restaurants are adding a service charge to the bill. If it is made clear that there is no obligation on the customer to pay the service charge, it is a voluntary service charge. If the customer must pay it, the charge is a mandatory service charge.
The tax and National Insurance consequences depend on the nature of the payment and how it is made and distributed.
A customer may give a tip direct to a worker or leave the tip on the table at the end of a meal. Tips given directly to workers are liable for tax. It is the responsibility of the worker to tell HMRC about the tips that they receive, either by completing a Self-Assessment tax return or via their personal tax account. HMRC will usually collect the associated tax via an adjustment to the employee’s PAYE code. There is no National Insurance to pay on tips given direct to a worker.
In a situation where the employer initially collects all the tips, irrespective of whether they are made in cash or paid by card, and distributes them to the employees, the amounts distributed must be paid through the payroll and included in gross pay for tax and for National Insurance. The amounts are liable to both tax and National Insurance.
A tronc is an arrangement for sharing tips. A tronc is run by a troncmaster and the troncmaster is responsible for operating PAYE and National Insurance on the distributed tips. The tronc will have its own PAYE scheme for this purpose, which must be run independently from the employer’s PAYE scheme.
A worker is entitled to be paid at least the National Living Wage (NLW) or National Minimum Wage (NMW) for their age. Amounts paid to workers in respect of tips, gratuities, or service charges do not count towards the minimum wage – the worker must be paid these in addition to the NLW or NMW.
Partner note: Employment (Allocation of Tips) Act 2023; the Social Security (Contributions) Regulations 2001 (SI 2001/1004), Sch. 3, Pt. 10, para. 5; Guidance on tips, gratuities, service charges and troncs.