The experts, Adam Partington and Esther Smith advise on which date should be shown on this employee's P45.
A one month's notice period has been served to one of our employees who has been working with us since last one year. We are confused as to what date should be shown on his P45?
The company gave notice on 25 Sep 2010. The company runs monthly payroll for all its employees till end of the month each month. In this instance which should be the date on the P45? Do we run his payroll till 24.10.10 or can it be run till 31.10.10? Do we need to take into account of SSP waiting days and any unutilized leave balances that the employee is entitled to take?Legal advice:Adam Partington, solicitor, Speechly Bircham
It appears from your question that the company has given the employee one month's notice beginning on 25 September 2010 and therefore their employment ended on 24 October 2010. According to HM Revenue & Customs, the date that should be entered on the P45 is the date on which the employment ended.
Employers should complete a P45 for a leaver on the day that the employee leaves. If this is not possible it must be sent without 'unreasonable delay'. In the case of a company where the payroll is run until the end of the month and the employee leaves mid month, producing the P45 after the final payroll is considered to be without 'unreasonable delay'.
Regarding holiday pay, regulation 14 of the Working Time Regulations 1998 (WTR) specifies that if on the date on which the termination of employment takes effect (here 24 October 2010) the employee has accrued but untaken holiday entitlement, the employer should make a payment in lieu.
The WTR provide for a minimum entitlement of 5.6 weeks' holiday (or 28 days holiday based on a five day working week). However, it is not unusual for a company to provide for a contractual holiday entitlement that exceeds the statutory minimum entitlement and to provide for an employee to be paid the balance of any accrued but untaken contractual holiday at the end of their employment, in which case this will need to be taken into account.
To clarify the position it would be necessary to check the employee's contract of employment. Under regulation 15 of the WTR it is open to an employer to require an employee to take his holiday at a particular time provided sufficient notice is given. Depending on the amount of holiday outstanding, it may have been possible for you to require the employee to take his outstanding holiday during his notice period but that opportunity has now passed.
Finally, in relation to your query regarding SSP, the rules relating to entitlements to SSP are quite complex. According to the Social Security Contributions and Benefits Act 1992 s151(1), an employee must serve three 'waiting days' before they are entitled to SSP. It would be necessary to check whether the employee has a contractual right to sick pay for the waiting days. If so, the company will have to take this into account when calculating the final payment. The contract may also provide for sick pay in excess of SSP which should also be taken into account. Failure to do so in either case could expose you to a claim for unlawful deductions from wages. It would therefore be advisable for you to obtain specific legal advice on this.
**************Esther Smith, partner, Thomas Eggar
The answer depends on whether the employee was dismissed on 25 September, and paid in lieu of his contractual notice period, or whether he was served notice to run in time (whether or not he was working) until 24 October. From the information you provide I cannot ascertain what the position is, but I assume that a letter of termination was sent to confirm the decision, and unless this makes it clear that the termination was with immediate effect and payment would be made in lieu of notice then the effective date of termination for insertion on the P45 should be 24 October.
Any accrued holiday pay would not add on to the end date, as his employment still ends on the date of termination (either 25 September or 24 October depending on the answer to the paragraph above) and any holiday entitlement is paid in lieu.
It is not clear what you mean by SSP waiting days in this context as your question does not suggest he was off sick for all or part of his notice period, assuming his employment continued until 24 October, so I am afraid I cannot answer that part!
Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.