Letter confirming payment in lieu of notice

Where you’ve stated an employee isn’t required to work out their notice period and instead will be paid in lieu of notice, use our letter to confirm the PILON payment. You need to work out whether it’s a contractual payment or not.

Contractual payment or damages?

Where there’s an express clause in the employee’s contract of employment permitting you to make a payment in lieu of notice (a PILON clause), then any PILON you make will be regarded as wages payable under the contract. Conversely, in the absence of such an express clause, pay in lieu of notice will be regarded as a payment of compensation in connection with termination of employment, i.e. damages for your breach of contract. So what’s the difference? Firstly, with a PILON clause, you can limit the amount payable to the employee to a sum based on basic salary only (see our Pay in Lieu of Notice Clause). However, where you have to pay damages for breach of contract, the damages must put the employee in the position they would have been had the contract been properly performed, i.e. had they been permitted to work their notice period. This means you will have to compensate them for the loss of any bonuses, commission, annual leave and other benefits in kind during what would have been their notice period. Secondly, since without a PILON clause you are committing a breach of contract if you pay in lieu, there is a risk that a tribunal or court will hold that you cannot then enforce the other provisions of the employee’s contract. If the contract contained post-termination restrictive covenants, this could cause you a major issue. Thirdly, the employee could issue a claim against you for wrongful dismissal if you have paid in lieu with no PILON clause, although if you have adequately compensated them for their loss, their claim shouldn’t get very far. Fourthly, if you do not have a PILON clause and you terminate employment without notice, other than in cases of gross misconduct, arguably the contract still continues unless the employee actually accepts your repudiatory breach of contract or until the end of the contractual notice period – which means the employee could demand its continued performance until then.

The tax position

Whether there’s a PILON clause or not, the tax position now states that you must calculate how much of the relevant termination payment is post-employment notice pay (PENP). PENP is broadly the “basic pay” the employee would have received for any unworked period of notice minus any contractual pay in lieu of notice, but there’s a complicated statutory formula to calculate the actual PENP figure. The PENP is treated as taxable earnings and subject to the full deduction of tax and NI. Similarly, contractual payments in lieu of notice are also treated as taxable earnings and subject to the full deduction of tax and NI.

PILON letter

Our Letter Confirming Payment in Lieu of Notice refers to the original dismissal letter in which you would have stated that a payment in lieu of notice would be made. It then goes on to confirm the amount of the PILON payment. We’ve not provided for it to include a sum in respect of other benefit-in-kind losses (where the payment is damages for breach of contract), so you’ll either need to add this in where applicable or you could take the risk that the employee won’t raise the issue. Where the PILON payment is made in exercise of a contractual PILON clause, we’ve included optional wording to make this clear. Finally, we’ve included two options relating to whether you’re enclosing a cheque for the PILON or whether you’re going to pay it into their nominated bank account.