Out-Law Guide 5 min. read
01 Apr 2018, 11:21 am
It is often the case that the way in which the payments are classified for tax purposes is different from the way they are classified by the employer and employee, or how they are described in any termination documentation.
This guide sets out the tax treatment of some of the more common payments made on termination of employment.
The government is intending that from April 2019 termination payments that are subject to income tax on amounts in excess of £30,000 will become subject to employer national insurance contributions. This change was originally due to take effect from April 2018 but has been delayed to April 2019.
When looking at a termination package, it is useful to bear in mind that payments will be subject to tax as earnings unless they come under one of the categories of exempt payments. In particular, any payments which are provided for in the employment contract will be fully taxable and will be subject to national insurance contributions (NICs).
Examples of taxable payments include those in respect of:
Therefore, some sums which are described in any termination documents as payments for 'compensation for loss of office' may be subject to tax in full, as if they are earnings.
The first £30,000 of a payment which is paid in connection with the termination of employment is tax free, as long as it is not otherwise taxable as earnings. Any excess over £30,000 is subject to income tax as normal, but is not currently subject to any NICs. If the government's proposals become law, from April 2019 any excess over £30,000 will be subject to employer's (but not employee's) NICs.
Two or more payments made in respect of the same employment, or different employments with the same employer, are aggregated for the purpose of the £30,000 limit.
Ex gratia payments, made where the employer is under no legal obligation to do so, and awards from the Employment Tribunal in respect of wrongful or unfair dismissal, can fall within the £30,000 exemption as can payments made on redundancy whether statutory, non-contractual or even contractual.
The tax treatment of payments made as compensation for discrimination claims depends on the precise nature of the payment. Some will fall within the £30,000 exemption, and some are entirely free of tax.
Certain payments made on termination of employment fall completely outside the tax regime, and are not taken into account in amounts to which the £30,000 exemption is applied. These exemptions include:
Employment contracts often provide that, instead of giving full notice of termination, an employer can terminate the employment immediately and make a payment in lieu of notice (PILON) instead of requiring the employee to work a notice period.
Before 6 April 2018 if a PILON was not provided for in the employment contract, it could, depending on the precise circumstances, be within the £30,000 exemption. However, for PILONs made on or after 6 April 2018, where the employment terminated on or after this date, the distinction between contractual and non-contractual PILONs has been removed so that all payments are treated as earnings subject to income tax, employer NICs and employee NICs.
PILONS must be distinguished from gardening leave provisions. When an employee is put on gardening leave, the employee will be given proper notice of the termination of employment but will be told not to attend work during this notice period. In this case the payment is not made in lieu of notice, regardless of whether or not it is made as a lump sum. It is simply the salary due for the notice period, and is therefore fully taxable as such.
Payments made by an employer into a non-HMRC approved retirement benefits scheme for the purpose of providing benefits are taxable. The term 'scheme' has a very wide meaning here. It can simply be a decision or a payment made in accordance with a policy.
A payment made in connection with retirement, rather than on termination of employment because of redundancy or poor performance will be fully taxable. Great care must therefore be taken with payments to employees who are to retire on or soon after the termination.
Contractual benefits will be taxed in the same way as benefits received during employment. Non-contractual benefits may fall within the £30,000 exemption. Non-cash benefits, or benefits in kind, will be valued at an amount equal to the cash equivalent of the benefit.
The provision of outplacement counselling or associated re-training is exempt from tax provided conditions are met.
The employer is obliged to account for any tax due under the PAYE system when it makes payments to terminate the employment of its employees. The employer will be liable for penalties and interest, as well as paying the tax itself, if it does not deduct tax when this becomes due.
If the termination payment is made before a form P45 is issued, then any tax due is deducted as normal under PAYE.
If the payment is made after the P45 is issued then the employer must instead deduct tax at all applicable rates as if the employee had no personal allowances available. This may result in more tax being deducted than would have been the case if the payment had been made before the P45 was issued, particularly for employees who receive a lump sum to terminate their employment but whose income is normally only taxed at basic rate. The employee can claim a repayment from HMRC of any excess tax deducted.