Debevoise & Plimpton LLP

This Practice Note looks at the basic principles of both direct and indirect age discrimination and considers the defence of objective justification and the exemptions which can apply for service-related benefits and for meeting statutory requirements. It looks at the implications of breaching the age discrimination requirements and then focuses specifically on age discrimination issues which can arise in the context of employee share schemes. This Practice Note was produced in partnership with Sam Whitaker of Shearman & Sterling LLP.

This Practice Note, written by Patrick Taylor and Gavin Chesney of Debevoise & Plimpton LLP (with the assistance of Ardil Salem, Michael Woollcombe-Clarke and Shaurya Upadhyay) considers the impact of insolvency proceedings initiated in England and Wales on arbitration commitments (foreign as well as national/local) involving the insolvent party. This topic may be referred to as: the legal approach to the intersection of arbitration and insolvency in England and Wales; the interplay or overlap between arbitration and insolvency proceedings under English law; the effects of insolvency on arbitral proceedings; managing or addressing insolvency-related issues in international arbitration proceedings.

This Practice Note examines the use of discretions in the context of employee share schemes. It examines the most prevalent case law regarding such discretions and examines how best to draft and exercise discretions in practice. This Practice Note is written in partnership with Sam Whitaker of Shearman & Sterling LLP.

This Practice Note considers the foreign service exemption, which applies to payments that would otherwise be taxable as payments on termination within section 401 of the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003), where the employee worked all or part of the employment period overseas. This Practice Note reflects the regime as it was amended from 6 April 2018. This Practice Note was produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

This Practice Note looks at how remuneration and rewards which are received by employees through various types of employee share plans are treated for the purposes of gender pay gap reporting and in particular, how such share plans are treated in assessing bonus pay and the gender bonus gap. This Practice Note is written in partnership with Sam Whitaker of Shearman & Sterling LLP.

This Practice Note explains what is meant by ‘Micklefield clauses’. It examines the use of such provisions in employee share schemes and employment contracts, the effect of such clauses and the possible limitations of their use in certain employment claims. The note summarises the relevant case law, and looks at the effectiveness of such clauses in restricting employees from bringing various types of employment claims for the loss of share incentive related rights on termination of employment. This Practice Note is written in partnership with Sam Whitaker of Shearman and Sterling LLP.

This Practice Note covers the circumstances in which tax-free payments can be made on the termination of an employment or office. The payment may be exempt because it falls within the £30,000 exemption, because it is fully exempted under the relevant legislation, or because it is not treated as employment income in the first place. This Practice Note sets out the changes to the regime which took effect from 6 April 2018. This Practice Note is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

This Practice Note considers the tax treatment of payments for restrictive covenants or undertakings given by employees in connection with current, future or past employments or offices. This Practice Note is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

This Practice Note covers the tax treatment from 6 April 2018 onwards of payments made by an employer in place of giving an employee due notice of termination of their contract of employment (commonly known as a ‘payment in lieu or notice’ or ‘PILON’). The facts and circumstances surrounding such payments must be carefully considered to determine the appropriate income tax and National Insurance contributions liability, including the definition and calculations associated with post-employment notice pay (PENP). This Practice Note is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

This Practice Note considers the income tax and National Insurance contributions treatment of (statutory and non-statutory) redundancy payments and the deductibility of such payments from a corporation tax perspective for the employer. This Practice Note sets out the changes to the regime for the taxation of payments in lieu of notice which took effect from 6 April 2018. This Practice Note is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

This Practice Note considers the tax treatment of payments made under a settlement agreement (formerly known as a compromise agreement), under which an employee and employer agree that the employee will not pursue a statutory or contractual claim against the former employer. These include payments in respect of compensation, restrictive covenants and legal fees. This Practice Note also considers the PAYE implications of post-employment payments, tax indemnities and the risk of HMRC challenging the tax treatment. This Practice Note is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

This Practice Note explores the issues relating to the taxation of termination payments, ie payments made on or following the termination of employment. It includes the income tax provisions under which a termination payment could be taxed, eg a general earnings charge or a specific employment income charge; payments in lieu of notice (PILONs) and the implications of settlement agreements. This Practice Note sets out the changes to the regime which took effect from 6 April 2018. This Practice Note is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

This Practice Note covers the specific deeming provisions that impose an income tax charge on payments and benefits on termination of, or change in the duties or functions of, an office or employment that are not otherwise chargeable, including the exemption for the first £30,000 of such a termination payment. It also considers the PAYE and NICs implications of such termination payments. This Practice Note sets out the changes to the regime which took effect from 6 April 2018. This Practice Note is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

This Practice Note outlines the principles underlying whether a payment or other benefit made in connection with the termination of an office or employment is taxable as earnings (or emoluments) under section 62 of the Income Tax (Earnings and Pensions) Act 2003. This Practice Note considers the income tax and National Insurance contributions treatment of termination payments constituting earnings, as well as briefly outlining the PAYE implications. This Practice Note sets out the changes to the regime which took effect from 6 April 2018. This Practice Note is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

This Practice Note outlines the key issues that arise in relation to employee share schemes on a transaction to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) apply. In particular, it looks at the effect of a TUPE transfer on existing awards under employee share schemes (and tax issues that may arise in relation to share options on TUPE transfers), whether rights to participate in an employee share plan will transfer to a transferee and how a transferee can in practice seek to deal with any such obligations. This Practice Note is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP.

A salary sacrifice involves an employee giving up a right to receive part of their cash salary in exchange for a defined non-cash benefit. The arrangements must constitute a variation of the employment contract. This is a precedent letter to be signed by both the employer and the employee acknowledging the change to the terms and conditions of the employee’s contract of employment as a result of the salary sacrifice arrangement (also sometimes known as the optional remuneration arrangement). This Precedent is produced in partnership with Sam Whitaker of Debevoise & Plimpton LLP and Lewin Higgins-Green of FTI Consulting LLP.

This Precedent sets out a sample clawback provision, which may be inserted into: (1) a contract of employment or service agreement which already contains a bonus clause; or (2) a separate stand-alone bonus scheme. This Precedent is written in partnership with Sam Whitaker of Shearman & Sterling (London) LLP.

It is common for employee share plans (and sometimes also employment contracts) to contain clauses which effectively provide that the employee waives any claims they may have to compensation for the loss of such share awards on the termination of employment. Such clauses are known as ‘Micklefield clauses’ after the leading case on the effectiveness of such clauses, Micklefield v SAC Technology Ltd [1990] IRLR 218. This is an example Micklefield clause for use in an employment contract. This Precedent is written in conjunction with Sam Whittaker of Shearman & Sterling LLP.

This Precedent provides some examples of common provisions typically included in settlement agreements where the departing employee is/was a participant in a company or group employee share plan or where the settlement agreement may need to deal with the repurchase of shares from the departing employee (eg in relation to private equity owned portfolio companies where the departing employee is part of management who has been given equity incentivisation and such equity is to be repurchased on departure). This Precedent is written in partnership with Sam Whitaker of Shearman & Sterling (London) LLP.

Clawback (sometimes also referred to as ‘real’ or ‘hard’ clawback) incorporates into the terms of incentive awards the right to reclaim value from participants once it has been delivered to them. This Precedent is a stand-alone clawback agreement and might be used where, for example, a bonus has been awarded by the company and the company wishes to impose additional clawback conditions. This Precedent is written in partnership with Sam Whitaker of Shearman & Sterling (London) LLP.