New Government Guidelines Will Leave Millions of Restaurant Workers Out of Pocket

Millions of the restaurant industry’s furloughed employees will lose out after new government guidelines have explicitly told employers to exclude substantial payments from Coronavirus Job Retention Scheme (CJRS) claims. While chancellor Rishi Sunak’s scheme is designed to cover 80 percent of wages, up to £2,500 per month, until 30 June — tronc, which is a payment mode for the distribution of tips, gratuities and service charges, can make up a significant part of restaurant staff’s monthly wage. The new guidelines appeared late on Thursday 23 April, four days after many restaurant owners began submitting applications for furloughed employees. The guidelines now state: “You cannot include the following when calculating wages: any tips, including those distributed through troncs.”

Tronc works by first pooling all tips, gratuities, and service charges, and then distributing them among staff in the form of monthly payments, as opposed to each staff member earning individual tips. Because such payments are somewhat predictable, many employee contracts state an official salary or hourly wage that is below the monthly take-home, because of the addition of those tronc payments; in some cases, employers contractually commit to a tronc top-up for staff.

With the government’s tax office classing those payments as “additions” to be excluded, many restaurant staff are now set to receive significantly less than they might have assumed, or were told they could expect from their employer. Someone whose wage was made up of 80 percent base salary and 20 percent from tronc, with no top-up from their employer, will receive 64 percent of their take-home pay through the government furlough scheme. One restaurant owner told Eater London that in some cases, employees whose regular wage was comprised of roughly 30 percent tronc, could receive as little as 45 percent of their normal income (80 percent of their 70 percent base salary) since tax is applied to the amount paid by the government.

Before last week, the specific mention of tronc had been excluded from government guidance, and resultantly caused a great deal of confusion and unease. This led restaurant accountants, some payroll companies, and trade body U.K. Hospitality to advise businesses to proceed as though those monies were to be included in salary calculations. One communication from a payroll company to an east London restaurant in mid-April seen by Eater London said government guidance did not “explicitly exclude distributions made by employers from properly constituted tronc schemes.” Now, following the new, explicit guidelines, some payroll companies are suggesting that including it in any wage calculations against a claim through the CJRS carries “an element of commercial risk.”

Some in the restaurant industry had expected this; others hoped it would not come to pass. Ultimately, that it remained open to interpretation added to operator woes. After an earlier update to the guidelines noted that “discretionary bonus (including tips)” should be excluded, U.K. Hospitality’s chief executive Kate Nicholls said: “the legal test in the guidance asks if it is a regular payment, and if there is a degree of obligation or contract terms in it. A properly constructed tronc, particularly one that is dealing with service charge, has those elements, and from a tax point of view is classified as earnings.” Although the guidance and legislation had not specifically mentioned tronc, Nicholls said that she thought “silence equals consent on this.”

However, that interpretation has not necessarily been shared by others in the legal profession. Lydia Christie, and employment lawyer at Howard Kennedy who works with a number of hospitality business has been forecasting problems with applying tronc contributions to wage calculations even before the latest guidance was published. “The issue is that because a tip, gratuity or service charge comes originally from the customer, there are different rules about the tax treatment for these depending on the hospitality business’ rules about how these are distributed,” she told Eater London. If tronc is controlled by the employer then both PAYE (income) tax and national insurance are due on that amount; when it is controlled by a troncmaster independent of the business, it is subject only to PAYE tax.

Christie added that “a tronc operated through a troncmaster, without control by the employer, is not ‘wages’ paid by the employer to employees. Since tronc is not wages which an employer is obliged to pay its employees, this means that hospitality businesses cannot claim tronc as part of the ‘wage costs’.”

Such variance in messaging, exacerbated by the previously unclear government guidelines, left restaurateurs in a bind. Before they could make the CJRS claims, some operators were paying furloughed staff with cash reserves or from government grants — administered by local authorities, at varying degrees of efficiency: restaurants in Hackney, Newham, and Islington have told Eater London that they are yet to receive the government grants. One restaurant which paid staff their wages inclusive of tronc additions on the understanding that the government would ultimately accept this as an official element of wages has told Eater London that it recognises that this money is now lost; they will be unable to continue paying staff members anything above their base wage.

Others waited, based on their own legal advice, to better understand how it would play out. Mandy Yin, owner of Malaysian restaurants Sambal Shiok and Nasi Economy Rice on Holloway Road has two separate payrolls: one for base salary and one for tronc payments. She simply left out the second claim, anticipating problems after the government referred to “tips” in its mid-April guidance.

For others, it is more complicated to disentangle, especially those who include a minimum tronc addition as part of a salary calculation in employee’s contracts. Phil Bracey, who runs Bright in London Fields, as well as wine bars P. Franco and Peg in Hackney, was advised to include tronc in his calculations. Whether or not the business receives enough money to be used for distribution via tronc, they contractually commit to paying staff an overall sum comprised of base salary and additions. In their view, that sum is an employee’s wage. Nonetheless, they too did fear that the government would ultimately clarify the guidance to the detriment of employees.

Those leading the calls for a long-term period of rent reprieve through a “National Time Out” on behalf of an already beleaguered restaurant industry called it a “disaster” for restaurant workers.