Are settlement agreements taxable?

Whether or not payments made under a settlement agreement are taxable depends on what the particular payment relates.

A termination package in a settlement agreement will typically comprise various contractual and non-contractual elements, some of which may be liable to tax and some of which may be tax-exempt. The tax position of termination packages can be complex.

The employer, with suitable legal support, should identify each payment within the termination package and consider the tax provisions applicable to each of these payments. As a general rule, payments chargeable to income tax under s.62 of the Income Tax (Earnings and Pensions) Act 2003 include:

• outstanding salary payments and holiday pay

• other earnings derived from employment such as outstanding bonus or commission payments

• non-cash benefits in kind, such as the retention of a company car;

• other payments made under the employee's contract of employment;

• a payment to induce the employee to enter into or abide by post-termination restrictive covenants; and

• payments given in connection with termination of employment that cannot be charged to income tax in any other way, to the extent that, as a whole, they exceed £30,000.

There is a £30,000 exemption in s.401 in respect of those elements of the termination package not otherwise chargeable to income tax that are received in consequence of the termination of employment.

The first £30,000 of the following payments benefits from the tax exemption referred to above:

• statutory, contractual and ex gratia redundancy payments made on account of genuine redundancy; and

• non-contractual ex gratia payments made as compensation for loss of employment, eg anticipated damages on account of unfair dismissal.

From 6 April 2020, employer NICs are due on termination payments of more than £30,000 that are already subject to income tax.

There is no longer a distinction between contractual and non-contractual payments in lieu of notice. All termination payments that would have been treated as general earnings if the employee had worked their notice period will be subject to tax and national insurance; and all payments in lieu of notice, whether contractual or not, will be subject to tax and national insurance.

Finally, the payment of legal costs by the employer direct to the employee's solicitor in respect of the settlement agreement is not subject to tax as long as the payment is made referencing a specific term in the settlement agreement and is in relation to the solicitor's costs incurred solely in connection with the termination of the employee's employment.