Requirement to deal with tips, gratuities and service charges Section 6: Information Records
Section 6 also inserts section 27J, which sets out the circumstances in which employers are required to keep records relating to tips and the right of workers to request those records.
	Subsection (1) provides that employers must maintain records in respect of a place of business if qualifying tips are paid at, or are otherwise attributable to, that place of business on any more than an occasional and exceptional basis. Records must be kept for three years (subsection (1)(b)).
	Where subsection (1) applies to an employer in respect of a place of business, subsection (2) requires the employer to maintain a record of the total amounts of:
qualifying tips paid at, or otherwise attributable to, that place of business;
the amount of those qualifying tips in (a) that have been allocated to workers of the employer at that place of business; and
the amount of those qualifying tips in (a) that the employer has arranged to be allocated to their workers at that place of business via an independent tronc operator.
	Subsection (3) provides workers with a right to make a written request for specified parts of their employer’s tipping records for a period specified in the request. The period must be a period of one month, or two or more consecutive calendar months that begins no more than three years before the date of the request and ends before the date of request, and the worker must have worked for the employer at any time during each month of that period (subsection (7)). A worker can request from their employer the total amounts of:
qualifying tips paid at, or otherwise attributable to, the employer’s place of business that the worker worked at;
those qualifying tips referred to in (a) that have been allocated to the worker, except those that have been allocated to the worker via an independent tronc;
qualifying tips paid at, or otherwise attributable to, the place of business that the worker worked at that have been allocated between the employer’s workers by an independent tronc operator.
	Subsection (8) limits the number of requests a worker can make under subsection (3) for information relating to the employer’s tipping records to no more than one request in any three month period.
	Where subsection (1) applies to an employer in respect of a place of business, so that they are required to maintain records, and they receive a written request from a worker under subsection (3), the employer must provide the worker with the requested information for the specified period, or a substantially similar period, within the "response period" (four weeks beginning at the date that the request is received by the employer (subsection (11)) (subsection (4)). The alternative of providing records for a substantially similar period allows for greater convenience where, for example, an employer keeps its records on a weekly or four weekly basis, rather than monthly.
	Subsection (9) provides that the disclosure of records to workers requesting them under subsection (4) does not breach any obligations of confidence or other restrictions (such as might be contained in a contract, for example). Employers are not required to disclose information under subsection (4) if that disclosure would contravene "the data protection legislation", which has the same meaning as in section 3(9) of the Data Protection Act 2018 (subsections (10) and (11)). Broadly speaking, employers will be able, without any particular difficulty, to comply with their obligations to provide records under section 27J without contravening data protection legislation. The vast majority of requests for records will not require the disclosure of personal data which relates to any individual other than the worker requesting it. There may be a limited exception to this where there are only two workers at a place of business in respect of the relevant period. However, in any event, Article 6(1)(c) of the United Kingdom General Data Protection Regulation provides that data processing (such as, here, the disclosure of records about qualifying tips) will be lawful where it is necessary for compliance with a legal obligation to which a data controller (here, the employer) is subject. Section 27J(4) is such an obligation (as is envisaged by the wording in brackets in subsection (10)).
	Where subsection (1) does not apply to an employer in respect of a place of business because no qualifying tips are paid at or attributable to that place of business, but tips are paid at the place of business on more than an occasional and exceptional basis and the employer receives a written request for records from a worker, subsection (6) applies to the employer due to subsection (5).
	Subsection (6) requires the employer to respond to the worker’s request for records relating to tips by notifying the worker that they are not required to maintain records relating to tips and of the reasons why they are not required to maintain records. The employer must notify workers in this way within the same "response period" of four weeks (subsection (11)). The employer’s reasoning is likely to be similar to the reasoning that would apply under section 27I in similar circumstances.