Much has been written about employee rights during insolvency but less on the fact that company directors themselves are entitled to redundancy payments.
There are strict criteria for this which this article will attempt to qualify.
Does a Director get Redundancy Pay?
Statutory redundancy pay is available to directors (with a cap of £14,370) and can be a lifeline during the difficult circumstances of a liquidation.
While many directors assume that, with an empty bank account and creditors knocking there is no where to turn, it is often the case that the statutory entitlement for directors redundancy could yield the funds required to liquidate the company.
Redundancy payments don’t have to be used for this purpose, of course, its at the director’s discretion.
What Criteria or Eligibility Should Directors Meet to Receive Redundancy Payments?
(1) The principal criterion is that any director seeking redundancy pay must be regarded as ‘an employee of the company’ in addition to his/her role as director (i.e. his/her role was more than non-executive).
(2) The director must have worked under an employment contract for at least the last two years (this may be written, oral or implied.)
(3) The director’s work week must be a minimum of 16 hours
(4) The director must be owed money by the company (whether it be PAYE arrears, for example, or an initial seed capital investment.)
Do You Need to Have a Contract?
Especially in instances where the director has founded the company, there may be no written employment contracts specifying the nature of his/her job role.
During a company liquidation, it will be up to the liquidator to assess whether a director without a written contract of employment has a legitimate claim on redundancy pay.
Implied contracts are a fairly common legal situation and, where it can be demonstrated that the director has maintained either a full or part-time role within the company, then they are demonstrably a worker and would hence qualify. The relevant laws here are Section 230 of the Employment Rights Act 1996 and Article 2 of The Working Time Regulations 1998. This is something of a legal grey area, however, and there have been numerous contentious legal cases around this subject.
Where directors have opted not to receive a wage and only receive dividends as a shareholder, this will automatically exclude them from statutory redundancy pay.
Can a Director Make Himself Redundant?
At the point of insolvency, the director need assign himself no special treatment, he will be as eligible as an employee for redunancy assuming he meets the following conditions.
- a formal contract of employment
- 16 hour minimum working week
- Must be engaged in a practical rather than merely advisory capacity
HMRC’s Redundancy Payments Calculator
HMRC offer a handy redundancy payment calculator which you can find here. You redundancy application will be based on:
- your current age
- your length of service to the company (with a 20-year maximum)
- your gross weekly pay (up to a maximum of £479 per week)
Also, you may claim a maximum of six weeks accrued holiday pay, and up to 8 weeks of unpaid wages.
For each full year of employment, a director has served, the RPS calculates one week’s notice being applicable. In cases of redundancy, pay instead of notice applies which means that a director may be eligible for up to 12 weeks additional redundancy pay
Is Director’s Redundancy Pay Taxable?
Unlike employees who are eligible for up to £30,000 as a tax-free statutory redundancy payment, directors have to pay tax on any redundancy.
How to Claim Directors Redundancy
The first thing to do will be to talk through your situation with the insolvency practitioners handling your liquidation. They will advise you on the best course of action, part of which will be filling in the forms available here.
You will need to to ask your insolvency practitioners for the case reference number. You will also need your National Insurance number to hand.
If you would like to talk to someone, call us on 08000 746 757 for free confidential advice, or use the live chat function below.