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Employee Share Option Scheme (ESOS)

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Employee Share Option Scheme (ESOS)

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About

An Employee Share Option Scheme (also known as ESOS) is a scheme that allows employees to buy shares in their employer's company. The employee can buy the shares at a discounted price, and can then sell them at a later date for a profit. Solicitors can help draft and/or proofread ESOS to ensure their accuracy.Next steps

How much does an Employee Share Option Scheme (ESOS) cost?

The cost for a licensed solicitor to help with an Employee Share Option Scheme (ESOS) is dependent on many factors including the complexity and specific requirements of the case. On average it is expected to range from £188-£250 but in some cases it could cost as much as £313.

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Employee Share Schemes

Starting an employee share scheme means giving your employees a stake in your business. Usually, these schemes are set up to motivate employees, improve retention, and attract new talent. 

Employee Share Option Schemes can also help business owners pass ownership to those working. By using such a scheme, owners can slowly sell the company - and maybe enjoy some tax breaks along the way depending on the share scheme setup.

Deciding on the most suitable scheme for your requirements can be difficult as there are lots of different ways to distribute equity. At Lawhive, our network of corporate lawyers is on hand to provide advice on various employee share schemes, including Company Share Option Plans and Enterprise Management Incentive Schemes. 

Contact our legal assessment team today to get your free quote for solicitor services and advice.

What is an employee share scheme? 

An employee share scheme is a way of distributing company ownership among employers.

Through an employee share scheme, businesses can reward some or all employees with equity in the company. They can also extend this opportunity to external shareholders, like consultants and advisors. 

How do employee share schemes work?

Employee share schemes primarily operate through two mechanisms: shares and options. Each offers various scheme types with distinct characteristics. 

What are shares? 

Shares represent actual ownership stakes in a company and can be granted immediately. There are two types: 

  • Ordinary Shares: These are standard shares in the company that can be given to anyone, including business owners and investors. 

  • Growth Shares: Growth shares are issued at a ‘hurdle price’ which is often at a slight premium to the company’s current value. Recipients of growth shares only share in the company’s growth in value from that point onwards. Growth shares can also be conditions, requiring recipients to meet certain criteria for their shares to become vested and unconditional, provided the company's Articles of Association permit this. 

What are options? 

Options grant the right to purchase shares at a later date, typically at a predetermined price. These options can be exercised in the future, either on reaching a certain milestone or at the time of an exit event, such as an acquisition or IPO. 

Shares vs options: What’s the difference? 

The main difference between shares and options is the timing and nature of ownership. Shares represent actual ownership in the company and can be granted immediately, while options grant the right to purchase shares at a later date. 

It’s important to understand the difference between shares and options because they impact the timing of ownership, tax implications, and the ability to participate in the company’s growth. 

Types of share schemes 

There are three main types of share schemes 

Share Award Schemes 

Share award schemes involve giving employees shares. The value of these shares is considered part of their income and is taxed accordingly unless the plan has been approved by HMRC as ‘tax-advantaged.’ 

Share Option Schemes 

In Share Option Schemes, employees get the right to buy a set number of company shares at a fixed price sometime in the future. Usually, employees can’t exercise these options (buy the shares) until after a certain period, known as the vesting period. 

You can also tie the granting and exercising of options to meeting certain goals, like hitting sales targets or creating a prototype. 

Share Purchase Schemes 

Share Purchase Schemes allow employees to buy shares outright, save money over time to buy shares, or put down a small deposit and pay the rest later to buy shares. 

HMRC-approved schemes, like the Company Share Option Plan and the Enterprise Management Incentives scheme, offer tax and National Insurance contribution advantages. On the other hand, unapproved schemes don’t provide these benefits. 

However, unapproved schemes are sometimes more flexible because they don’t have to meet the qualifying conditions set for approved schemes. 

Phantom Share Option Schemes 

Phantom share options are where employees receive rights to cash payments. These payments are worked out on the value of the company’s shares. Instead of actual ownership of the shares, employees get cash based on how well the company performs. 

What is a Company Share Option Plan?

A Company Share Option Plan (SCOP) is a scheme where employers can offer employees the opportunity to buy company shares at a fixed price. 

In a CSOP, employers can grant employees options on shares worth up to £30,000 each. The share price is set when the option is granted and must be at least as high as the share’s market value on that day. 

Employees can exercise their options after a specific period, buying shares at the fixed price, not the current market value. 

If employees go on to see the shares for a profit, they may not have to pay income tax or National Insurance contributions on the gains, under certain circumstances. However, they might be liable for Capital Gains Tax if their profits exceed their annual allowance. 

Businesses can receive tax relief on the costs associated with establishing and managing the CSOP, as well as on providing shares through the scheme. 

What is an Enterprise Management Incentive (EMI) scheme? 

An Enterprise Management Incentive scheme lets qualifying companies offer employees options to buy shares worth up to £120,000 per employee (up to a total of £3 million) at a set price.

To qualify, the company’s gross assets must be under £30 million, and it must have less than 250 employees. Certain types of companies, like those in property development or financial activities, don’t qualify. Furthermore, participants in the scheme must be employees working at least 25 hours a week or 75% of their working time. Those owning 30% or more of the company’s shares don’t qualify. 

EMI schemes are a popular employee share scheme for private companies.

Are employee share schemes tax-free? 

No. In the UK, all shareholders are subject to Capital Gains Tax on any gains from shares. Generally, tax can be due on award, exercise, or sale of shares, with Capital Gains Tax applying to gains in share value and Income Tax being levied at the recipient’s current tax rate. 

However, certain schemes offer tax advantages, with recipients benefiting from a lawyer rate on gains over the agreed value set by HMRC at the time of sale, provided it’s at least 24 months after the grant of options. 

Further, EMI schemes, for example, can also be cost-effective for employers, offering offsets against Corporation Tax liability. However, it’s important for businesses to fully understand the different tax implications of each scheme.

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Why would a company give employees shares?

There are several good reasons to consider setting up an Employee Share Scheme, particularly for start-ups and growing companies. Core benefits include: 

Talent Attraction & Acquisition

ESS can be a valuable addition to a company’s benefits package, especially when funds are limited in growing companies. As part of a comprehensive benefits package, an employee share scheme can be a good alternative to using higher salaries as a way to attract and retain new talent.

Improved Company Performance 

Some research suggests that the presence of an employee share scheme can positively impact company performance as a whole, as well as individual productivity. 

Better Employee Engagement 

Similar to the above, when employees own shares in a company, they feel more connected to the business and invested in its success. This can lead to enhanced employee engagement, loyalty, morale, and increased focus on the company’s success. 

Tax Efficiency 

Employees might enjoy tax perks, like avoiding income tax or National Insurance on their worth in specific schemes, including Share Incentive Plans, Save As You Earn (SAYE), Company Share Option Plans, and Enterprise Management Incentives. 

Shares offered outside of these approved schemes don’t have the same tax benefits. 

Employee shareholders may also enjoy some tax reliefs depending on the value of their shares. 

What are the challenges of setting up an employee share scheme?

Setting up an employee share scheme involves some careful planning. Then, once set up, there are ongoing administration and compliance tasks to take into account. While this does involve some expense for the company, including time and resources, the benefits they enjoy as outlined above are significant, providing a tangible return on investment. 

How to choose the right employee share scheme 

There are lots of different options when it comes to employee share schemes, including HMRC tax advantaged schemes, Non-HMRC tax advantaged schemes and non-tax advantaged schemes. 

It’s important to understand what you are trying to achieve by establishing an employee share scheme in the first instance, however, it’s also worth noting that certain schemes may not be suitable for your company if you don’t meet the eligibility criteria. 

Let’s break them down: 

HMRC Tax-Advantaged Schemes 

An HMRC tax-advantage scheme is an employee share scheme approved by HMRC that offers tax benefits to both employees and employers. These schemes encourage employee share ownership and can include: 

  • Enterprise Management Incentives (EMI) Options 

  • Company Share Option Plans (CSOPs) 

  • Share Incentive Plans 

  • Save As You Earn Schemes 

Startups, scaleups, and SMEs favour EMI option schemes because of their tax benefits, while Share Incentive Plans and Save As You Earn schemes require company-wide participation, making them suitable for larger companies with more employees. Unlike EMI and CSOP schemes, which can be selective, these schemes typically extend eligibility to all employees. 

Non-HMRC Tax-Advantaged Schemes 

You can establish share ownership schemes for employees that still provide tax advantages while not being HMRC-approved. These arrangements involve the acquisition of shares or share rights and allow the company or shareholders to safeguard voiding rights, and dividend rights, and better handle situations involving good leavers or bad leavers as needed. 

Share Subscription Arrangements

In a Share Subscription Arrangement, employees purchase shares directly from the company, usually at their market value. Any increase in the value of the shares is typically treated as a ‘capital gain’ for the employee. This means that they may be subject to Capital Gains Tax when they sell the shares in the future. 

Share Subscription Arrangements can be structured in various ways to suit the needs of the company and its employees, including determining the subscription price, the number of shares available for subscription, and any conditions attached. 

Growth/Hurdle Share Arrangements 

Growth/Hurdle Share Arrangements involve creating a new class of shares with no value until specific milestones are reached. 

These arrangements aim to manage the acquisition cost of shares by initially assigning them a low or nominal value. Employees can then subscribe for these shares at market value, and any increase in value is treated as a capital gain when the shares are sold. 

Joint Share Ownership Arrangements 

Joint Share Ownership Arrangements involve employees acquiring a share interest through a trust. The trustee holds the current value of the shares, while employees pay market value for their share interest. When the shares are sold, any increase in value is considered a capital gain. 

Non-Taxed Advantaged Schemes 

Non-tax-advantaged schemes are employee-share ownership arrangements that do not qualify for specific tax benefits. These include: 

  • Non-Tax Advantaged Share Options 

  • Phantom Share Options 

How much does it cost to set up an employee share scheme?

Setting up an employee share scheme can cost anywhere between £5,000 and £30,000 depending on the size of the scheme. 

When setting up a scheme, it’s important to seek assistance from a lawyer. The average cost for a licensed solicitor to help with an Employee Share Option Scheme (ESOS) can range from £188-£250, but in some cases, it could cost as much as £313.

Do I need a solicitor to set up an employee share scheme? 

It’s not a legal requirement to hire a solicitor to set up an employee share scheme, however, the support and advice of an employee share scheme solicitor can go a long way to make sure the scheme aligns with your business goals and maximises tax efficiencies. 

What’s more, a solicitor can advise on how you may go about future-proofing your employee share option scheme to make sure your company and its shareholders are protected. 

Get expert help with employee share schemes from Lawhive

Our expert network of lawyers offers support to businesses in designing employee share option plans tailored to your company and its stakeholders. 

They can help with: 

  • Drafting employee share plans in line with your company’s commercial objectives 

  • Advising on necessary changes to your company’s constitution to accommodate the scheme

  • Addressing regulatory considerations 

  • Drafting equity plans and individual award agreements 

  • Providing personalised advice on corporate and employment law relating to employee share schemes

  • Assessing impacts of employee share schemes on founders, investors, and stakeholders 

  • Advice on directors' remuneration and other corporate governance matters. 

For more information and a free fixed-fee quote, contact our legal assessment team

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