Does the post-employment notice pay (PENP) regime apply where an employee is summarily dismissed (say for gross misconduct) but is subsequently paid a compensation payment by the ex-employer?

It is important to note that the position of a person whose employment was terminated without Notice (and without being entitled to notice), such as for an act of Gross Misconduct is not expressly dealt with in the relevant legislation, nor in the guidance given in HMRC’s Employment Income Manual. In addition, the meaning of ‘by notice’ in the definition of minimum notice could be construed widely to include summary dismissal for, among other things, gross misconduct. Therefore, it remains debatable whether, in a case of gross misconduct, the post-employment notice period is properly to be treated as nil.

For further guidance on post-employment notice pay generally, see Practice Note: Taxation of payments in lieu of notice (PILONs) and post-employment notice pay (PENP).