Payments in lieu of notice – an update

Since 6 April 2018, employers have been required to pay Income Tax and Class 1 National Insurance Contributions (NICs) on certain parts of termination payments made to employees whether or not these payments are contractual. The element that is liable to taxation is the amount of the termination payment that represents a payment in lieu of notice commonly referred to as ‘PILON’. The measure means that all PILONs rather than just contractual PILONs (as was historically the case) are treated as taxable earnings.

In addition, all employees are required to pay Income Tax and Class 1 NICs on the amount of basic pay that they would have received if they had worked their notice in full, even if they are not paid a contractual PILON. This means that the tax and NICs consequences are no longer dependent on how an employment contract is drafted or whether payments are structured in some other form, such as damages.

The changes apply to payments, or benefits received on, or after, 6 April 2018 in circumstances where the employment also ended on, or after, 6 April 2018. Foreign service relief on termination payments has also been removed for all UK residents, apart from seafarers from 6 April 2018.

If an employee is on gardening leave, then the payment for the period to the termination date cannot properly be described as made in lieu of notice as the employment continues to the termination date whether the employee works or not.

Planning note

The introduction of employer NICs on termination payments above

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Pensions Regulator to seize assets where employers fail to pay workplace pension fines

The Pensions Regulator (TPR) has announced that employers who refuse to pay workplace pension fines could have their assets seized to pay their debts.

TPR can issue fines to employers who fail to meet their automatic enrolment duties and can secure court orders if the debts are not then paid. TPR is to now appoint High Court Enforcement Officers (HCEOs) to enforce court orders in England and Wales, and the equivalent in Scotland and Northern Ireland, on those employers who have refused or failed to comply. If an employer does not pay their debts, HCEOs could visit the employer’s business premises to seize and remove items to sell, up to the value of the amount owed. This could include the employer’s company vehicles. Unlike bailiffs, HCEOs have the power to force entry to locked commercial premises to seize assets.

TPR has never needed to use HCEOs before. The intention is to only use them on those rare occasions when, without good excuse, an employer has failed or refused to pay a fine imposed by TPR and after which TPR has subsequently obtained a court order for the amount owed.

Separately, TPR will consider whether it should prosecute employers that remain non-compliant with their automatic enrolment duties despite being given a court order demanding they pay the fines they have incurred.

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