Previous employers withholding P45. Advice required please

[V88Dicky]

Just a bit of background first. My last day of employment with previous employers was Nov 29th, having previously given 5 weeks notice. Despite giving way more notice than required (a misguided attempt to help them find a replacement for me in good time), the numptys have not taken me off the payroll, and consequently paid me a full month's salary on Christmas Eve

When I phoned them querying where my P45 was, their payroll clerk noticed their error (her error?), and said they cannot issue a P45 until this matter is resolved. Now, I'm not really up on employment law, but I thought employers had a legal obligation to issue the P45 when an employee has left the company, irregardless of whether or not they have made a 'clerical' error with their payroll?

I'm not fussed about giving the pay back, as I've put it to one side just in case, but yet again I'll be starting my new job (Jan 6th) on the Emergency Tax band because a previous employer has dragged arse issuing these infernal bits of paper

Any advice greatly appreciated.

[GrumpyTwig]

https://www.dur.ac.uk/resources/jobs/apply/p46.pdf ?

[P-Jay]

Sounds more like they're doing battle with the dreaded payroll system rather than taking any moral high-ground withholding it until they sort out the over-payment, personally I'd let the whole thing run it's course rather than waving any obscure bit of legislation at them.

There is a form (maybe a P46?? although that seems too simple of HMRC) you can complete to avoid the dreaded BR or 0T tax code on your first pay from your new employer, I'd go down that route.

[Eric Mc]

They are legally obliged to give you a P45. Of course, the P45 should be CORRECT - so I would give them a bit of time to correct their error. I expect they should have done that when running the December payrolls so there is really no reason why they shouldn't be able to give you one now.

When you go to the new employer you can explain the situation to them and they can get you to sign a P46. However, I would try and make sure you can get a P45 to the new employer before the end of January so that they can get a proper and correct PAYE coding from HMRC.

[V88Dicky]

Thanks for the replies guys.

Should I wait until they formally request December's pay back, or offer to send them a cheque instead? I'd rather they chase me up for the money personally ........

[TVR1]

V88Dicky said:

Thanks for the replies guys.

Should I wait until they formally request December's pay back, or offer to send them a cheque instead? I'd rather they chase me up for the money personally ........

Assuming that your previous relationship as an employee was a good one (I'm assuming yes, as you gave them the courtesy of an extended notice period AND working on the basis of never burn your bridges)....

I'll answer this question with another question;

What course of action do you think your previous employer should take if you realised that they had underpayed you?

[Fer]

V88Dicky said:

Thanks for the replies guys.

Should I wait until they formally request December's pay back, or offer to send them a cheque instead? I'd rather they chase me up for the money personally ........

Many moons ago (pre-internet banking) I had an ex-employer make another payment for the month after I left. I was working out of the country at the time, and they came with the moral high ground of "it's theft" and threatening all sorts of things if I didn't make immediate payment. I called payroll, told them it was their mistake, I would pay them back as soon as I was back in the country, and if they wanted payment sooner then they could get their lawyer to contact me at his earliest convenience. Strangely enough they felt I was being more than reasonable and said that two weeks was fine.

I would pay them back though, to stop them playing silly beggars.

[V88Dicky]

TVR1 said:

Assuming that your previous relationship as an employee was a good one (I'm assuming yes, as you gave them the courtesy of an extended notice period AND working on the basis of never burn your bridges)....

I'll answer this question with another question;

What course of action do you think your previous employer should take if you realised that they had underpayed you?

Mmm

This is a company who 'lost' my expenses claim TWICE after I attended a 2 day course last March. I finally got paid them in October (3rd time lucky I guess!). To say they are inept is an understatement.

However, I'll probably just pay up and move on. I just need to make sure it's all above board etc.

[Eric Mc]

You ARE obliged to give back money that you shouldn't have had. Legally, it IS theft if you refuse to pay it back.

So, be reasonable about it. No point in getting into a war with them.

[sumo69]

Assuming this is done by the 5th January, they should be able to reverse your December pay and resubmit their revised monthly FPS report to HMRC for the December month.

Then they should be able to issue the P45 and you repay the erroneous net pay you received - job done.

If not, then you are probably better completing a P46 and as you have been employed this tax year you will be on a 944L M1 basis giving you 1/12 of your annual personal allowance - however you would have overpaid tax due to a zero earnings December so getting the P45 would be a better option as you would then have the benefit of a cumulative 944L tax code.

David

[worsy]

Don't be too worried about Emergency Tax Codes. Complete a P46 (been a few years so might have changed) to state it is your main employment and you'll get 944L M1, which just means any underpayment or overpayment will not be taken into account. Obviously having had a month out of work you'll very likely have an overpayment due back and that will get sorted in Feb/March or as a refund in 14/15.

[V88Dicky]

Cheers Worsy