Changes to the Taxation of PILONs

As you may be aware, the government has embarked on a series of reforms with a view to simplifying, clarifying and tightening the tax treatment of termination payments to employees.

From Friday 6 April 2018 inclusive all payments in lieu of notice (PILONs) will be treated as earnings.

This means that all PILONs will be subject to tax and Class 1 National Insurance Contributions (NICs).  This applies regardless of whether:

• there is a clause allowing PILONs to be made in the employee’s contract or not; and
• the PILON is made on an ’open’ basis or as part of a settlement package.

As such, it will no longer be possible to offer a tax-free lump sum in lieu of notice as part of settlement negotiations. Therefore, if and to the extent an employee does not work some or all of their notice period, employers will be required to tax and make NI deductions from an amount equivalent to ‘notice pay’ when making termination payments.

Calculating ‘Notice Pay’

There are two different formulas for calculating the tax on the portion of the termination payment equivalent to ‘notice pay’, depending on whether the employee is paid monthly and whether the notice period under the contract is expressed in months. Where an employee is paid monthly, and their notice period or unworked period of notice is expressed in months, the calculation is straightforward. A more complicated formula is applied if the employee is not paid monthly or the employee’s notice period or unworked period of notice is not expressed in months, in which case a calculation of the number of days for which notice pay is owed must be carried out. Both calculations are based on pay in lieu of basic pay only. Employers should therefore have regard to the formulas set out in the legislation when calculating the sum to be taxed as notice pay.

Other Changes

The following further changes will also take place as of 6 April 2018:

• Foreign service tax relief on termination payments for UK resident employees will be subject to restrictions (NB: if this is applicable to your business it is recommended that you seek specific advice as it is essential to determine when and where services are performed, when the employee left and returned to the UK and what their tax status was throughout the period);
• Whilst the £30,000 tax free threshold on termination payments will still apply (subject to the changes on taxation of PILONs), the Treasury will have the power to introduce regulations to vary the £30,000 threshold.
• As of 6 April 2019, all termination payments that exceed the £30,000 threshold must be subject to Class 1A NICs as well as income tax.

If you require any advice on the changes highlighted above please do not hesitate to contact a member of our Employment Team who will be more than happy to help. 

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