Employee ownership and employee ownership trusts

Transcription

1 Employee ownership and employee ownership trusts This talk is part of a Scottish Enterprise awareness raising programme for advisers working with Scottish businesses Speaker Graeme Nuttall OBE Codebase, Edinburgh 26 January 2018

2 1. Introduction Employee ownership in the UK is in a healthy state A UK definition of employee ownership ( EO ) " a significant and meaningful stake in a business for all its employees... What is meaningful goes beyond financial participation. The employees stake must underpin organisational structures that ensure employee engagement. In this way employee ownership can be seen as a business model in its own right. Nuttall Review of Employee Ownership (2012) 1

3 1. Introduction, continued The UK has the necessary legal and tax framework to support EO: well established ways of achieving direct ownership of shares: share incentive plan ("SIP"), enterprise management incentives ("EMI") arrangement, company share option plan ("CSOP") and save as you earn share option scheme ("SAYE plan"), and non-tax advantaged plans long established concept of a trust, and flexible company laws and other laws, for example, securities laws 2

4 2. What is different in companies with EO? all employees have a direct and/or indirect share ownership stake, and there are organisational structures that promote employee engagement: key features of employee engagement typically found include access to information, "employee voice, a commitment to staff training and a strong ethos in addition to their individual voices, employees have a say as shareholders and may also have a say at board level either through an employee council and/or a board representative 3

5 2. What is different in companies with EO, continued? CSH Surrey has an active employee council called The Voice, whose co-owner elected representatives ensure coowners voices are heard at Board level The Employee Directors will be elected by employees for a period of up to three two year terms 4

6 3. How to categorise EO Given similar approaches to employee engagement, EO can best be categorised according to the type of share ownership employees have: Direct - where employees become individual owners of shares through one or more tax-advantaged or other share plans Indirect - where shares in a company are held collectively on behalf of employees, usually, in an employee trust, and Hybrid - where there is a combination of direct and indirect employee ownership 5

7 4. EO is a distinct business model Employee financial participation ( EFP ) Employee engagement Cash EFP Employee share ownership ( ESO ) Employee ownership ( EO ) Direct EO e.g. ESO Hybrid EO i.e. direct and indirect EO Indirect EO i.e. the trust model 6

8 5. Direct EO Many believe strongly that when each employee has their own shareholding, the benefits of EO are more likely to be achieved but: how will an internal market be financed does individual ownership put the company's independence at risk who will handle the tax, accounting, reporting and company secretarial aspects will generational differences arise, and will there be an effective collective employee voice? 7

9 6. Indirect EO A capital gains tax exemption introduced in 2014, on qualifying disposals of a controlling interest into an employee ownership trust ( EOT ) together with an income tax exemption for bonuses paid by EOT controlled companies have attracted attention to this form of EO Trust ownership means that employees of the relevant company (or group): know that the shares in the trust are held on a permanent basis on their behalf, have a collective voice through trust, in how the company is owned and governed, and can benefit from the profits that would otherwise be paid out to investors. 8

10 6. Indirect EO, continued In contrast to direct EO: once the original share acquisition into the trust has been financed there is no further need for finance the trust model provides a stable and long-term method of ownership the complexities of operating direct employee ownership don t arise (but neither do the financial rewards of direct EO), and there is clearly a collective voice on the part of employees, through the trustee of the trust. The trustee can act as a custodian of the company's employee ownership ethos 9

11 7. Hybrid EO Broadly two approaches: Adding direct ownership to a trust ownership model There may be a commitment to majority trust ownership but an element or elements of direct ESO are needed Adding minority trust ownership alongside direct ownership So, for example, the internal share market operates over only a reduced proportion of the company's shares 10

12 8. Establishing an employee trust section 86 of the Inheritance Tax Act 1984 (a "section 86 trust") or an EOT? 236J Taxation of Chargeable Gains Act 1992 (1) A settlement meets the all-employee benefit requirement if the trusts of the settlement (a) do not permit any of the settled property to be applied, at any time, otherwise than for the benefit of all the eligible employees on the same terms, (b) do not permit the trustees at any time to apply any of the settled property (i) by creating a trust, or (ii) by transferring property to the trustees of any settlement other than by an authorised transfer, (c) do not permit the trustees at any time to make loans to beneficiaries of the trusts, and (d) do not permit the trustees to amend the trusts such that the amended trusts would not comply with one or more of paragraphs (a) to (c) 11

13 8. Establishing an employee trust, continued A corporate trustee or individual trustees? A UK corporate trustee or a non-uk professional trustee? A UK trustee allows for a "paritarian" composition of trustee directors: some directors appointed by the board of directors of the employer company the same number selected (or elected) from the employees as a whole, and one or more independent directors 12

14 9. An employee buy-out Key advantages: the terms of the buy-out are largely within the owner/s control. employee buy-outs have a good record of succeeding, and an employee buy-out avoids the commercial risk of disclosing confidential information to potential trade buyers Also, some owners prefer an employee buy-out because: it recognises the contribution employees have made to the success of the business continuity of the business can be achieved for customers and suppliers it can avoid the closure of premises etc. that often occurs following a trade sale, and the business ethos is more likely to continue intact 13

15 10. An EOT buy-out Gifts, share subscriptions or a buy-out? Usually a trustee of an EOT as the buy-out vehicle Are there any pre-buy out issues to address e.g. creating a group? 14

16 10. An EOT buy-out, continued Buy-out stages: (1) Design 15

17 10. An EOT buy-out, continued (2) Tax, accounting etc. checks The basic tax proposition is that: the employer company will not get a tax deduction for the voluntary contributions it makes the voluntary contribution is received tax free by the trustee, and the owner should realise a capital gain, when he or she is paid by the trustee for their shares 16

18 10. An EOT buy-out, continued (2) Tax, accounting etc. continued The EOT capital gains tax exemption the relevant company is a trading company or the principal of a trading group the trust meets the all-employee benefit requirement the trust does not meet the controlling interest requirement immediately before the beginning of the tax year in which the disposal occurs, but does meet it during the tax year and through to the end of the year the limited participation requirement is met, and section 236H does not apply in relation to any related disposal by the claimant or a person connected with the claimant which occurs in an earlier tax year 17

19 10. An EOT buy-out, continued (2) Tax, accounting etc. continued The EOT income tax exemption If an EOT has a controlling interest in a company then there is an income tax exemption of up to 3,600 per employee each tax year on certain qualifying bonus payments (with NICs liabilities continuing to apply) It is the employing company and not the trustee that must pay the qualifying bonus 18

20 10. An EOT buy-out, continued (2) Tax, accounting etc. continued The EOT income tax exemption, continued Every eligible employee must participate on the "same terms"'. This requirement will not be infringed if an award is determined by reference to remuneration, length of service or hours worked. Each factor may give rise to a separate entitlement but the total entitlement must be the sum of those entitlements, not the product 19

21 10. An EOT buy-out, continued (3) Tax clearance/s (4) Establish trustee and EOT (5) Valuation/due diligence (6) Financing bank debt? (7) Share acquisition completion (8) Embed EO 20

22 11. Conclusion EO can work at every stage in the business lifecycle: Start-ups Helping growth Achieving management succession Achieving ownership succession Business rescues 21

23 Discussion Graeme Nuttall OBE Partner - London E: graeme.nuttall@fieldfisher.com T: +44 (0)