Employment Law Cases

TUPE: transfer of share incentive plan

The right to participate in a share incentive plan transferred to a new employer under TUPE, even though the employee’s entitlement to participate in the plan arose under an agreement separate from and not referred to in his contract of employment.

Employees covered by TUPE will transfer from the outgoing employer (the transferor) to the new employer (the transferee). Regulation 4(2)(a) provides that on a TUPE transfer, ‘all of the transferor’s rights, powers, duties and liabilities under or in connection with any such [employment] contract shall be transferred by virtue of this regulation to the transferee’ (emphasis added).

Background

Mr Gallagher’s employment transferred to Ponticelli under a TUPE transfer in May 2020. In his previous employment, Mr Gallagher had been a member of a share incentive plan (SIP). Ponticelli refused to provide an equivalent scheme when Mr Gallagher’s employment transferred. He brought a tribunal claim, asserting he was entitled to be a member of a SIP equivalent of his former employer’s plan. He argued that his right to participate in an equivalent SIP had transferred to Ponticelli as part of the TUPE transfer. The tribunal upheld Mr Gallagher’s claims. He was only able to participate in the SIP because he was an employee of the company. It was a benefit for employees such as Mr Gallagher and was part of his overall financial ‘package’. Therefore it was ‘caught’ by the wording of reg. 4(2)(a). Ponticelli appealed to the EAT who dismissed the appeal. Whilst his membership of the SIP did not arise ‘under’ the contract of employment, it plainly arose ‘in connection with’ his employment contract. He could only join the SIP because he was an employee, his subscriptions were deducted from his salary and the SIP formed part of his overall package of financial benefits associated with his employment. Therefore, the automatic transfer principle was engaged. Mr Gallagher was entitled to participate in a SIP of substantial equivalence. Ponticelli appealed (to the Scottish equivalent of the Court of Appeal).

Court of Session decision

The appeal was dismissed.

Ponticelli’s main argument was that the tribunal should have followed a 1987 case (Chapman v CPS Computer Group) where the Court of Appeal found that for the purposes of a share option plan, employees who had been TUPE-transferred out of the company had been made redundant. Under the terms of the plan this allowed them to exercise their options. This was authority, argued Ponticelli, for the proposition that where a share option scheme is separate from the contract of employment, the rights under the scheme do not transfer under TUPE.

Not so said the Court of Session. The Chapman case only interpreted a specific rule in the share option scheme. It had not considered the position under TUPE and didn't address whether rights under that contract were ‘connected with’ the contract of employment and as such capable of transferring. As such, the decision was clearly distinguishable from Mr Gallagher’s. Moreover, previous cases have interpreted the phrase ‘in connection with the contract’ widely, to include liability for personal injury for example. Rights and liabilities do not have to be contractual to transfer.

The tribunal and EAT had been correct to find that the rights and obligations under the SIP transferred. Although Ponticelli could not provide the specific scheme offered by the transferor, it had to provide a substantially equivalent alternative.

Comment

Although the decision was reached by the Court of Session in Scotland, the relevant provisions in TUPE apply across Great Britain. Faced with the same issue, the EAT in England and Wales would almost certainly follow the Court of Session decision.

This decision confirms that TUPE can cover share scheme benefits even where the contractual documentation containing the right to participate is separate from the contract of employment. In practical terms, employers should ensure that prior to a TUPE transfer they establish whether a SIP plan is in place and explore the details of this during the due diligence process. They will then be able to determine the extent of their post-transfer obligations, addressing any issues before the transfer takes place.

As well as presenting the transferee with a significant cost burden, the obligation to provide a share scheme of substantial equivalence may cause practical difficulties, particularly if the transferee is not a listed company, cannot offer shares or does not operate a share scheme for existing employees.