How should payments in lieu of notice be taxed from April 2018?

From 6 April 2018 all payments in lieu of notice will be taxable, whether contractual or non-contractual. Income tax and class 1 national insurance contributions will be due on the amount of basic pay that an employee would have received if they had worked their notice in full.

What are the current tax rules on payments in lieu of notice?

Currently, if you have a contractual right to make a payment in lieu of notice (‘PILON’), that payment is subject to income tax and national insurance contributions (‘NICs’).

If you don’t have a contractual right to make a PILON (because there is neither an express term in the employment contract nor an established custom and practice of making a PILON), any payment made in respect of an employee’s notice entitlement is generally regarded as ‘damages for breach of contract’ and the first £30,000 can be paid tax-free and without deduction of NICs.

What tax rules will apply to payments in lieu of notice from April 2018?

From 6 April 2018, all payments in lieu of notice will be taxable. The principle is relatively straightforward but there is a complex statutory formula for calculating the sum that should be taxed, known as ‘post-employment notice pay’ (‘PENP’). PENP is, broadly, the salary the employee would have received during any unworked period of notice minus any contractual PILON. It is calculated by reference to:

  • Basic pay only (before any salary sacrifice), disregarding bonus, overtime, commission, benefits in kind etc.; and
  • How much statutory or contractual notice (whichever is longer) the employer is required to give to terminate the contract.

PENP is subject to income tax and NICs in full. The balance of the termination payment is eligible for the £30,000 tax exemption and full NICs exemption (provided it is an ex gratia payment).

Statutory redundancy payments are exempt from PENP calculations and qualify for the £30,000 tax exemption, provided they are genuinely paid on account of redundancy.

The new rules will apply only where employment terminates on or after 6 April 2018.

There may be significant tax implications for non-contractual PILONs made from April 2018. For example:

  • An employee’s employment is terminated without notice on 30 April 2018. The employee is paid £5,000 monthly (basic pay); has a 3 month notice period; and there is no contractual PILON. They receive £35,000 compensation on termination. This an ex gratia damages payment, not linked to any contractual terms such as bonus entitlement.
  • Under the current rules, the whole compensation payment qualifies for the £30,000 exemption. Income tax is due on the balance of £5,000.
  • Under the new rules, income tax and NICs (both employer and employee) are due on the PENP of £15,000. The balance of £20,000 qualifies for the £30,000 exemption.

And from April 2019?

Currently if a termination payment qualifies for the £30,000 exemption, tax is due on any excess over £30,000 but no NICs are payable. From April 2019, employer NICs will also be due on the balance over £30,000. With employer NICs currently at 13.8% this will significantly increase the cost of some termination payments.

In practice

All employers should be aware of the new rules and think about how they might impact on any termination negotiations. It seems that PENP will need to be calculated for each employee whose employment is terminating including those with contractual PILON clauses (although we are still waiting for guidance from HMRC).

Where there is currently no contractual PILON clause:

  • Making a PILON where the termination date is 6 April or later will potentially result in significantly increased costs for both employer and employee.
  • Consider whether to exit any employees prior to April 2018 to take advantage of the more favourable tax position.
  • Think about including PILONs in contracts going forward. Having a PILON clause allows a payment in lieu of notice to be made without being in breach of contract, thereby preserving any post-termination restrictions. There will no longer be any tax benefit in not including one.

Please get in touch with us if you would like to discuss the impact of the new tax rules on your termination arrangements.

More about Protected Conversations

An employment relationship can sometimes run its course necessitating a frank conversation with an employee. It may be in the best interests of both parties to bring the employment to an end by way of a settlement agreement.

Often, the best way to start that process is by having a protected conversation.

What is a protected conversation?

The law allows an employer and an employee to have an ‘off-the-record’ conversation in certain circumstances.

If you or your employee are proposing to end your employment on agreed terms, the conversation can be kept confidential. This means that what you say can’t be used as evidence in an unfair dismissal claim. Although there are some exceptions, generally the conversation is protected.

What are the exceptions?

Protected conversations cannot be held in situations where dismissals are automatically unfair, such as those involving health and safety matters or where the protection of the Public Interest Disclosure Act is invoked. Neither is protection afforded to breach of contract or discrimination claims. This can be a problem. An employer may not know what issues are going to be raised by an employee during a protected conversation so always take advice from an HR professional and research as much of the history about the employee beforehand as you can. Recognise that in some situations having a protected conversation many not be the best route to take.

What should you do if you want to have a protected conversation with an employee?

If you’re planning to have a protected conversation with your employee, make sure you prepare in advance. You need as much information as possible. You may find it helpful to ask/research questions like:

  • Why are you proposing to terminate the employment?
  • Has the employee got a history of anything that might be relevant – grievances, disputes, sickness absence etc
  • How much are you offering and how has that been calculated? (Any notice pay would be taxable)
  • Will you expect your employee to work their notice period?
  • Will you be offering a reference?
  • What is the alternative if you don’t agree to a settlement agreement? I.e. manage their performance under an internal procedure which may result in termination for poor performance and notice pay only OR investigate an alternative role in the company?

Your employee is not under any obligation to accept any proposed settlement agreement. In fact, the law doesn’t allow anyone to accept it until they have taken independent legal advice on it (paid for by the employer usually capped at £350 plus VAT)

Ask your employee to confirm (once they have thought about it) whether they would like you to confirm the proposal in writing. This could be a draft settlement agreement or simply a letter or email. This will help you to clarify what is being offered but always ensure that any subsequent correspondence has ‘without prejudice’ in the title or heading.

Can an employee initiate a protected conversation?

Although a protected conversation is usually initiated by the employer, an employee can also request one, provided that it is with a view to agreeing a settlement agreement.

If your employee states that they’re willing to have an off the record conversation, you can go ahead with a protected conversation if you are minded to agree a settlement with them to leave. Let them know that the details of the conversation should be kept confidential because it’s with a view to reaching a settlement agreement.  Make written notes of the conversation you have had.

At the meeting, you could propose a settlement agreement yourself or you could ask your employee to make a suggestion for you to consider.

Although the most important aspect of a settlement agreement is usually the financial amount, you should consider non-monetary aspects such as:

  • a detailed reference
  • career coach support (professional help with finding another job)
  • release from anything in your employment contract that restricts you after the end of your employment
  • paying for a training course

What happens next?

You should give a reasonable period of time for your employee to consider any proposed settlement agreement. ACAS recommends 10 days, although employers rarely give this long in practice.

GDPR – Employee record keeping and beyond

In a series of blogs, Amelore begin to look at GDPR from a HR perspective to ensure employers are ready for the new requirements in respect of their employee data and beyond. This will form part of a continuous focus on this hot topic until May 2018 when GDPR goes live. We appreciate many companies may not yet of begun their GDPR journeys, so we will be offering advice and guidance in short blogs.  We will also help to signpost employers to useful information which extends beyond the processing of employee data.

GDPR is itself an extension of existing UK data protection laws. This new legislation builds on the Data Protection Act (DPA) which employers already need to adhere to. DPA principles cover areas such as ensuring employers keep accurate, secure information.

The ICO (Information Commission’s Office) are at the forefront of helping organisations understand this evolution of our data protection laws. They recently published GDPR Myths. This series of blogs helps to demystify the new regulations.

Data breach – what an employer needs to do?

In ICO’s latest blog they provide valuable advice and guidance on how employers need to respond if a data breach occurs. They report that some employers have expressed concern that any data breach needs to be reported and that huge fines will ensue. The ICO say this is not the case and that only breaches that are likely to risk people’s rights and freedoms will need to be reported.

The ICO also point out that fines will be proportionate and that companies who are open, honest and report without undue delay can avoid fines. It is expected that by now, larger organisations will already have appointed a Data Protection Officer (DPO). However, smaller organisations are also advised to consider who in their organisation is responsible for data. We would advise all organisations, no matter how small, to know who is responsible for data (again not just employee data) and who is responsible for reporting a breach should it occur. This starts to form a robust approach to data governance.

Employee data processing

Employee data processing will be a key focus for many organisations, however some employers may be worried about any potential changes to how they currently store their data.

All organisations will be storing employee records in some way, shape or form; so you are now advised to review these filing systems, including the security of the data you are processing in respect of employing people, to ensure robustness. We have already observed some organisations writing to their third-party data processers asking for evidence of their compliance.

Handlers of this data need to make sure they are processing data fairly and for legitimate purposes. Furthermore, if they are transferring it outside of the EEA there are specific safeguards in place.

For those employers wondering if the UK’s exit from the EU will affect GDPR the government has already confirmed it will not. However, please note that International companies operating across EU states will need to work out who their lead data protection supervisory board is.

Further still, forming a data protection working party or project team to audit what data is being processed is also advisable. Many companies are already helping organisations with data mapping and auditing. Amelore work closely with Mazars to provide a range of services for our clients.

In summary, the good news is that common sense does prevail and that the processing of data where it is necessary for the performance of a contract will be a valid reason for processing. If you have any queries or questions in relation to any of the points made please contact Amelore for further advice and guidance.

We will continue to focus on this topic as we approach next year tackling other aspects of the GDPR (link to first blog) in further detail; such as consent, the right to be forgotten, and subject access requests.


GDPR countdown – are you ready?

The new  General Data Protection Regulations (GDPR) come into place in May 2018, you need to start preparing now as time is fast running out.

Changes to the governance of data will have far-reaching consequences for businesses, GDPR will determine how your business does business, and particularly how it manages, protects and administers data in the future.

Europe has a plethora of different data protection regimes in each EU country. Organisations have to deal with many different sets of rules depending on where they setup their business and sell their products or services. The GDPR will harmonise data protection laws across the EU and will also apply to organisations across the world. Any company that processes personal data about EU citizens whether they reside in the EU or elsewhere in the world will need to abide by the GDPR.

European companies are still wrestling with how they are going to be compliant with the law in less than a year. Companies from other parts of the world may not have even heard of the GDPR, and therefore might not be aware of the possible impact upon them. As citizens from EU countries do business and exchange data with companies across the globe, the GDPR is something that international companies outside the EU need to be aware of and should be planning for. Failing to do this could seriously hinder their ability to market and sell their products and services in the EU.

Who needs to be GDPR compliant?

It is imperative that organisations that offer goods and services to EU citizens, and that subsequently process their personal data, are compliant with the GDPR. 

A global study by Veritas showed that businesses are worried that they will not be compliant by the May 2018 deadline. Research showed that 56 per cent of respondents in Singapore, 37 per cent in the US and more than 60 per cent in Japan and South Korea, are worried they will be unable to meet the May 2018 deadline for compliance.

More than 90 per cent of organisations in Singapore showed concern by the potential business disruption from GDPR. Around 20 per cent fear that their company may go out of business as a result.

These are alarming figures for foreign companies that do business in the EU.

The GDPR represents a shift across the world towards a culture of safeguarding personal data, especially considering the global reach of the legislation.

What you should already be considering

As the clock is ticking companies should be working towards compliance in a structured manner including:

  • rolling out GDPR awareness programmes across the business;
  • ensuring representation and input from all key business functions;
  • data mapping all personal data flows in and out of the organisation;
  • creating an information asset register; and
  • undertaking a gap analysis against the GDPR compliance requirements, including consent notices, privacy impact assessments and contractual arrangements with 3rd parties with whom personal data is shared.

These will form part of the building blocks to determining how much further work is required for the business to be compliant by Spring 2018. Many businesses will require significant changes to policies, procedures and working practices. Smaller businesses which collect process and store limited personal data may be less affected but may still need to make some changes to comply with the new legislation.

Clearly organisations that started to work towards GDPR compliance early on are ahead of the game and have a better appreciation of the level of effort that’s required to make some of the changes required to comply.













Performance Management in 2017

Companies Must Become Active and Responsive – interacting with everyone working in their company.

Today’s workers expect change. Constantly. And feedback. Specifically, they expect to have the ability to change their goals as business and their own needs change. They also expect to make changes using technology. And any technology solution should mirror the experience they have in their personal lives – it should be intuitive, responsive, relevant, and immediate.

Not only should any technology be up-to-date, it needs to provide immediate feedback.

For example, when you deposit a cheque using your banking app, it tells you immediately whether that transaction was successful. Same when you purchase something using your tablet.

The modern workforce wants that type of feedback about their performance because they have choices to make about their careers and they know it.

Regular performance feedback isn’t a Millennial thing. Every employee wants to know where they stand; what their future is; if you rate them and what for; what the niggles and opportunities and challenges are. Don’t wait until they have resigned to tell them you saw them as a future Director. It will ring hollow no matter how sincere.

Likewise any feedback does not and should not exclude contractors, consultants and other individuals working with the company.  Today’s workforce is flexible moving very between employment and self employment to suit them. Don’t miss out on interacting with everyone that is working for you.

Active Performance Management enhances the Modern Workplace

Any Active Performance Management solution should take the best of the traditional performance management process and combine it with the needs of today’s workforce. It provides a structure that managers and employees want so the process remains fair. It can also include the documentation aspect necessary to support job changes and promotions.

By making the process technology driven, it can take the traditional performance management one step further and facilitate real-time feedback conversations that employees want to move to the forefront. It can also utilise downtime.

Real-time feedback piece is so important to everyone that wants and values it. Waiting once a year (for a performance review) doesn’t work. It’s time to move to real-time system for performance, with frequent touch points between the manager/client and employee or worker.

5 Key Elements of Active Performance Management (APM)

2017 is the right time to introduce active performance management. There are four key elements to changing current performance management processes.

  • Regular performance conversations. Most organisations have some mechanism in place requiring managers and employees to meet once or twice a year. With active performance management, employees and managers meet more often. The timeliness of performance feedback helps the employee perform at a higher level.
  • Peer-based feedback. In addition to increased manager feedback, employees learn how to provide each other with performance feedback. This can be just as valuable – if not more so – than manager feedback. Employees collaborate with different colleagues every day and need positive working relationships with their peers.
  • Focus on current and future projects. More frequent performance conversations mean less time is spent rehashing old behaviour. Workers and managers already know what happened in the past. The conversations are spent on future performance, talking about how to accomplish goals.
  • Development at every level. Every worker becomes skilled in delivering performance-related feedback. This helps them take ownership of their career development.
  • Looking to the future – The elephant in the room is often that both sides know that to truly realise ambitions the individual may not stay in the same place until retirement. Working in a new way means such ambitions can be captured and companies can stay in touch with their future talent even if they aren’t currently working for them.

When you implement active performance management into an organisation you may wish to phase-in different key elements.

Phased implementations can be very successful and embed ways of working firmly. Performance Management facilitated by technology will allow the flexibility to introduce the entire process or each piece separately.

Active Performance Management Leads to Talent Activation

Organisations must create processes that result in having the best talent in the right positions. Those processes need to include creating an environment where all their workers (current, future and past) feel empowered to ask for and give feedback and that any training/development they need to be available in a timely manner.

When employees are engaged with their work, their performance improves and organisations begin to set the pace rather than react to the pace of the market.

We all understand the opportunity cost of not being agile in business. Think of companies like Uber, Airbnb, and the new Amazon app-based grocery stores. These companies shouldn’t have been able to disrupt the way that they did had “legacy” brands kept up with or innovated within their respective spaces. Increased agility enables organizations to increase the speed at which they conduct business and innovate, which improves the bottom-line.


Employment law changes anticipated for 2017

A round up of the employment law changes anticipated for 2017, amid the ongoing uncertainty resulting from the Brexit referendum. 

Large compliance projects for data protection and gender pay gap reporting will dominate the HR agenda in 2017.

Employers are likely to see costs increase as the apprenticeship levy and additional fees for sponsoring foreign workers are introduced, and tax savings for employee benefits are significantly reduced.

Now more than ever it is important to ensure you are have good up-to-date HR practices and are employing the right people on the right terms and conditions.

  1. Data Protection Regulation compliance efforts underway

Although the EU General Data Protection Regulation (GDPR) does not come into force until May 2018, the scope of the changes under the new Regulation means that preparing for the GDPR will be high priority for employers in 2017.

Employers will need to carry out audits of employee personal data that they collect and process to ensure that it meets GDPR for employee consent. New governance and record-keeping requirements mean that employers will also have to create or amend policies and processes on privacy notices, data breach responses and subject access requests.

As the GDPR will come into effect before the UK exits the EU, organisations that are not compliant by May 2018 will risk fines of up to 20 million euros or 4% of annual worldwide turnover, whichever is higher.

  1. Gender pay gap reporting begins

Private-sector, voluntary sector and public-sector organisations with 250 employees or more will be required to publish gender pay gap information for the first time.

Employers will be obliged to release information relating to employee pay and bonus pay, as well as information on the number of men and women in each quartile of the organisation’s pay distribution.

Gender pay gap regulations for private and voluntary sector employers are still in draft form but the deadline for the first report is expected to be 4 April 2018, based on pay and bonus data from 2016/17.

Reporting requirements for public-sector employees are expected to mirror private-sector timelines and requirements.

  1. Apprenticeship levy on large employers introduced

Employers with an annual payroll of more than £3 million will be required to pay a 0.5% levy on their total pay bill starting on 6 April 2017.

Large employers will be able to access levied amounts, plus a government top-up of 10%, to fund apprenticeships from accredited training providers.

Smaller organisations that are not required to pay the levy will also be able to receive funding for accredited apprenticeships by contributing 10% towards the cost of an apprenticeship, with the Government paying the remaining cost.

This is potentially great news for employers and young people entering the workforce.

  1. Salary-sacrifice schemes significantly restricted

Employers may need to reconsider their benefit offerings as tax savings through many salary-sacrifice schemes will be abolished from 6 April 2017.

Schemes related to pension savings (including pensions advice), childcare, cycle-to-work and ultra-low emission cars will not be affected.

Schemes in place prior to April 2017 will be protected until April 2018, while arrangements related to cars, accommodation and school fees will be protected until April 2021.

  1. Changes to rules for employing foreign workers 

Employers sponsoring foreign workers with a tier 2 visa will be required to pay an immigration skills charge of £1,000 per worker (£364 for small employers and charities) beginning in April 2017.

The immigration skills charge will be in addition to current fees for visa applications.

In April 2017,the minimum salary threshold for “experienced workers” applying for a tier 2 visa will also increase to £30,000.

New entrants to the job market, and some health and education staff will be exempted from the salary threshold until 2019.

  1. Restraints on public-sector exit payments are still expected

Restrictions on public-sector exit payments, which had been expected to come into force in 2016, are still anticipated, although their implementation dates have not yet been confirmed.

Exit payments will be capped at £95,000 when public-sector employees leave their roles, including as a result of redundancy or voluntary exit.

Employees earning over £80,000 will also be required to repay exit pay if they return to any public-sector role within 12 months.

This will be a key area for the National Audit Office to look at closely and ensure that further loopholes aren’t being created.  Poor practices that included raising salaries exceptionally to benefit from Defined Benefit pension schemes, offering VR to expensive senior staff who merely wished to retire as well as agreeing terms to re-hire have been costly to the public purse.

  1. National minimum wage changes 

Cycles for national minimum wage increases – including the national living wage – will be aligned, with the next round of changes taking effect on 1 April 2017.

The next increase will see the living wage for staff aged 25 or over rising to £7.50.

Use this link to check you are paying the correct rate. Also look at current and future statutory rates for maternity pay, paternity pay, adoption pay, shared parental pay and sick pay.

  1. Trade union balloting changes to be implemented 

Employers await the implementation date for new balloting requirements under the Trade Union Act 2016.

Under the rules, a successful vote for strike action will require a 50% minimum turnout and a majority vote in favour of industrial action.

Industrial action in important public services will require a strike vote of 40% of all eligible voters.

Is in-house HR the best option for your Company?

Having worked ‘in-house’ for much of my career and more recently as a consultant, I’ve had seen both sides. This is particularly illuminated when one performs a detailed ‘access all areas’ HR audit.  Matching the needs of the business against the capability and remit of the HR function. Often it can be a bigger gap than anyone realises.

New role in HR – Work out what you need to do to fit in

When you begin a new role with a Company they are keen that you bring new ideas and change things. But many quickly realise that the most important thing to learn is ‘How they do things around here’. For in many companies not working that out quickly could mean one is not in post long enough to do more than just be new.

Companies by their very nature are insular. The individuals that do well are either the very brave and talented who do their own thing but bring in so much revenue that no-one cares. Equally those that are extremely corporate will have long and successful careers. Individuals that are very bright will move on naturally because there will be many options for them. Those that are clearly poorly performing will be moved on. But everyone else stays.

So, in that context the parameters of what ‘good HR’ looks like are set. This will almost certainly involve maintaining unique processes and ways of doing things. Quirky administrative approaches. Often long winded. And all the unwritten stuff about who gets fired quickly and how.  And what gets ignored or isn’t deemed officially important.

HR ignore half their customers

When a Company initiates an HR audit what they often want to know is how do we compare with our competitors? Do we have the right resources and skills in HR. Too much or too little? That answer is always unique to the organisation as often it is driven by individuals and/or the sector. If you have someone very senior that insists that HR is all about administration and problem solving and nothing more than that will dictate who you have in your function. If you are in a sector where you have high turnover and a lot of ER problems that may require some intense catch up before you move to a different model.

Companies have different motivations for HR audit from are we compliant (will I get my bonus?) right through to do we have the skills and talent in HR and the remit to achieve what the ambitious CEO and board want to achieve.  Often there is quite a gap.

And HR still exclusively focus their activities on ‘employees’. The self-employed, the flexible labour and the workforce of tomorrow are largely ignored which is a bit like only caring about the customers that visit your store and not the ones that shop occasionally on-line or could be buying your products.

Most HR process are substantially similar – not substantially different.

In an article written by Ruud Rikhof, Managing Partner of KennedyFitch he states “We believe that 80% of the activities in HR are substantially similar from company to company, not substantially different”. So, if it is substantially similar, why would you need it “in-house and customised” when you could pass it on to someone else, do it quicker and save money?

So many HR practitioners talk about Best in class. So many CEO’s don’t share these aspirations as they see such a process as long winded, expensive and distracting from core business.

Do ‘best in class’ processes you have contribute to the bottom line?

Whilst core HR processes should be agile and robust, they will never give your business a competitive edge. So, it’s wise to focus what resource you have on the things that will.

One of the issues about benchmarking your company’s HR needs against another is that whatever standard you use may not be the right one.

Your performance management system may have won awards and have some great technology with it – but does it drive performance?

You may have invested in a fantastic HR software system – but where are the reports and does anyone use or understand it apart from HR?

So, do you know what is right and important for your organisation and is that where you are directing your resources?

Individuals want an individual experience

When you go out to market to hire exceptional talent, the person you offer to is unique. You are excited about them joining and may even create a different package to get them on board. The CEO will take an interest in their on-boarding. But at that point the individual approach begins to wane. HR will get anxious that the Company is being inconsistent and will want the new hire to be treated the same as everyone else.

We have observed that increasingly individuals demand that they are treated as individuals. It’s often a deal breaker. Yet in-house HR activities are focussed on treating everyone the same.

What are the alternatives?

Many companies value their long serving loyal HR administrator. Key thing is to ensure you have the right level of senior HR challenge and expertise.

Equally you can contract out the administration, investing in a good system and employ a bright career hungry HR professional to work with your leaders and focus on the big things for your Company.

Many companies have an Employment lawyer on speed dial which absolutely supports the reactive problem solving risk adverse model that is hardly likely to have your HR function doing things differently.

Of course you can have both. HR lead in-house and HR admin in house. But that then results in what many businesses have now. A cost centre that stops more than it starts and manages problems.

Getting your HR capability right can be a powerful tool for increased competitive advantage. Especially in a challenging market

Christmas. It’s the time of year when…

This is the ultimate advice checklist for how HR should deal with Christmas issues…
1. Employees sometimes do stupid stuff. At Christmas time and otherwise. It’s a fact of life.
2. Just deal with it.
3. Resist the urge to worry too much about vicarious liability, discrimination and constructive dismissal. Although it is probably a good idea not to put any mistletoe up in the office.
4. Resist the urge to write any sort of policy.
5. Resist the urge to put any sort of disclaimer about behaviour in any Christmas party related literature. If someone wants to punch Bob from Accounts on the dance floor after 12 pints of beer then they will do it anyway. See points 1 and 2.
6. Resist the urge to write special rules about absence from work after social events. See point 2.
7. Apply Christmas common sense.
8. Avoid sprouts in an office environment at all times. This is especially important in small or poorly ventilated offices.
9. Never, ever, buy Secret Santa presents from Ann Summers.
10. Put a tree up; Eat some Quality Street; Wear a Christmas jumper; and remember to enjoy yourself.

It’s holiday time – So, how does your holiday policy shape up?

Whilst most employers run the usual January to December holiday year, some companies operate a holiday year which mirrors their financial year. Those very brave employers have a holiday year which follows each employee’s employment start date (administratively this must be a nightmare!)

Employers with an April to March holiday year will find themselves in a peculiar situation for 2016 through to 2018. Remember that all workers are entitled to a minimum of 5.6 weeks’ paid holiday, which means 28 days for a full-timer. Bank holidays count towards this entitlement.

Due to the moving Easter holidays, rather than the typical eight bank holidays in a year, April 2016 – March 2017 will have only six bank holidays, while April 2017 – March 2018 will have ten.

So what can you do about this?

Your first port of call is to check your contractual wording around holiday entitlement. This could throw up a number of different scenarios.

Here are a few (using full-time workers as an example):

  1. When the contract states: “you are entitled to 20 days holiday plus all bank holidays”. For April 2016 – March 2017 this would mean that your employees would only receive 26 days holiday, which is obviously below the statutory minimum entitlement. You would therefore need to give them an additional two days paid holiday. For April 2017 – March 2018 they would receive 30 days holiday, but without specific wording which has anticipated this exact scenario it is unlikely you will be able to deduct the extra two days, as the entitlement is to “all” bank holidays.
  1. When the contract states: “you are entitled to 20 days holiday plus 8 bank holidays”. Again your employees would only receive 26 days holiday for April 2016-March 2017 as there are only six bank holidays. You would therefore need to give your employees an additional two days paid holiday to ensure they receive their statutory minimum entitlement.

However, for April 2017 – March 2018 you could choose not to give employees two of the ten bank holidays (there is no automatic right to time off on a bank holiday). However, unless they agree otherwise, you would not be able to deduct these from the 20 day holiday entitlement as the contract says that they are entitled to 20 days holiday. You would instead have to get them to work two bank holidays, which may not be practical if the office is closed and certainly will not be popular.

  1. When the contract states: “you are entitled to 28 days holiday inclusive of bank holidays”. The result of this is the same as point 2 above. You will have to give two extra days for 2016-2017 and you could choose to require employees to work two bank holidays for 2017-2018.

This situation is bound to arise again in the future so the next time you undertake a review of your employment contracts it would be worth considering whether you want to include wording in the holiday clause so that holiday entitlement can be adjusted each year if necessary to allow for this scenario.

This may be even more desirable where you already offer holiday in excess of the minimum statutory entitlement and don’t want to be in a position of having to afford additional days to employees in a particular year.

Eu exit and the implications for your business

Following the unexpected confirmation of a “leave” vote, many businesses will already be turning their attention to what happens next?

The most important message is that the referendum result does not trigger any automatic legal changes; neither does the UK’s formal notification that it will be withdrawing from the EU.

The UK will continue to be a member of the EU for the time being, and the status and effect of all UK and EU law remains unchanged for now, and possibly for some time in the future.

Beyond that, however, much remains to be debated and negotiated – such as the shape of trading agreements between the UK and the EU, the status of EU-derived law, thorny issues such as acquired rights, and the UK’s relationships with non-EU states.

It’s still business as usual for a while – no immediate changes

Neither the referendum result nor the UK’s formal notification to the EU has any immediate legal effect. From a legal perspective, it will be ‘business as usual’, probably for some time to come.

  • The next step is for the UK to give formal notification to the EU of it’s intention to leave. This will start the withdrawal process, which must be concluded within two years unless an extension can be agreed (which requires the consent of all twenty-seven remaining Member States).
  • The future trading relationship between the UK and the EU could take one of a number of different forms; which form it takes will have significant implications in terms of the movement of goods, services, people and capital.
  • The UK will also need to undergo a major legislative project to identify which areas of EU-derived law will stay, which will be modified and which will no longer have effect in the UK.

Each of these processes is likely to involve much consultation with the UK public and industry. Businesses have an important part to play in shaping the environment that they will be trading in, domestically and cross-border.

Employment implications of Brexit for your business

UK employers are unlikely to see any large-scale changes to current employment law in the short-term as a result of the UK leaving the EU.  The UK’s on-going relationship with EU Member States, as well as our own workplace culture, is likely to demand that the UK retains many of the EU-derived laws that have already been incorporated into domestic legislation.

Free movement of workers within the EU

Now we’ve voted to leave the EU, the free movement of workers will certainly be affected. However, changes to legislation are likely to be gradual rather than immediate.

While in theory citizens of EU member states no longer enjoy the automatic right to work in the UK (and vice versa), this will form part of negotiations to establish the UK’s new trading relationship with the EU.

EU nationals already employed in the UK may already have acquired rights under UK legislation, depending on how long they’ve been here. It’s likely that many will be permitted to stay in return for a similar agreement for UK nationals currently employed in EU member states.

For prospective employees, however, it may be a different story. While it will still be possible to employ personnel from EU member states, there may be extra administrative costs to be factored in, such as visa applications. An EU employee’s capacity to remain long-term in the UK may also be affected.

There may also be limitations on the type of workers that will be allowed to seek employment in the UK. If we choose to follow a model more like the US or Australia, visas may only be granted for those in professions identified as having a particular need.

Other employment legislation changes

We also expect some piecemeal reform to specific areas of employment law, such as:

  • Clarification of the rules for calculating holiday pay and how holiday accrues during periods of long term sick leave, under the Working Time Regulations (WTR)1998.
  • There is on-going litigation regarding inconsistencies between the WTR and the EU Working Time Directive (which the WTR implements in the UK), creating wide-spread confusion for UK businesses and potentially significant accrued and on-going liabilities.
  • Whilst the UK government is unlikely to repeal current working time rules, it may well take the opportunity to clarify the rules around holiday pay and provide much needed guidance for employers.
  • Pro-business reform of agency worker rights, given the additional costs and complexities of engaging agency workers since the introduction of the Agency Workers Regulations 2010, which implement the Temporary Agency Work Directive.

Whilst the AWR gives agency workers limited equal treatment rights with comparable permanent employees from day one, following a 12-week period, an agency worker has a right to equal pay, working time and holiday with a comparable permanent employee. The extent of any reforms in this area will depend on the exit terms the government is able to negotiate.


Understand the profile of your workforce. How many are EU citizens? How long have they lived in the UK? Do any have the right to a British passport that you can support?

If you are in a sector recruiting lots of EU nationals or likely to, consider accelerating any planned recruitment before changes are announced to the process. Much more likely that any existing arrangements will be allowed rather than unpicked.

If you are planning to expand into areas of Europe, familiarise yourself with local employment legislation and understand any opportunities to second staff from UK and vice versa.

If you would like to speak to an experienced employment advisor, please contact us.