Do your malus and clawback provisions need updating?

Do your malus and clawback provisions need updating?


Malus and clawback provisions in incentive plans were originally introduced for financial institutions, mainly in response to the financial crash in 2008.  However, they have now become common for LTIPs and executive bonuses in all sectors.  They originally applied in very limited circumstances, such as misstatement of financial results or gross misconduct by the participant, but the range of events which trigger these provisions has been gradually expanding.

Meaning of Malus and Clawback

The term “malus” (except in the context of gardening) has become used broadly as an opposite to “bonus”.  It refers to the downward adjustment of incentive awards before they become payable – or before they vest or become exercisable in the case of LTIP awards or share options.

In contrast, “clawback” means that participants are required to pay back all or some of an amount they have already received, for example the shares transferred on vesting of an LTIP award.

Regulatory requirements

Certain companies regulated by the FCA or PRA are required to include provisions which make variable remuneration awarded to material risk takers subject to clawback.

The July 2018 version of the UK Corporate Governance Code, which applies to all companies with a premium listing, states (paragraph 37) that “Remuneration schemes …… should also include provisions that would enable the company to recover and/or withhold sums or share awards and specify the circumstances in which it would be appropriate to do so”.

The November 2018 Investment Association (IA) Principles of Remuneration (section 4) require remuneration structures to “include provisions that in specific circumstances, allow the company to:

• Forfeit all or part of a bonus or long-term incentive award before it has vested and been paid (‘performance adjustment’ or ‘malus’); and/or

• Recover sums already paid (‘clawback’)”.

Directors’ remuneration reports must set out the company’s policy on malus and clawback and, of course, the actual provisions need to comply with that policy.

Typical circumstances

The relevant regulations do not spell out the circumstances in which malus and clawback provisions should apply.  The most common triggers used by companies are:

• material misstatement of the company’s results; and

• gross misconduct by the participant.

The IA now states that “remuneration committees should establish a more substantial list of specific circumstances in which the malus and clawback provisions could be used”.

In practice, the additional reasons differ depending on the companies’ sectors and individual circumstances.  The ones which we see most often are:

• material error in the information on which the size of awards or the extent of achievement of performance conditions was based;

• material corporate failure;

• material risk management failure;

• serious reputational damage or material loss caused by the participant’s actions; and

• material contravention by the participant of a company’s ethics and values.

How clawback works

Malus provisions are relatively easy to implement because no amount has been paid to the participants, and so the size or nature of the existing awards can be adjusted.

In the case of clawback, however, amounts need to be recovered from participants.  For those who remain employed, this may be done by reducing other amounts due to them, for example by reducing future bonus payments or the size of unvested LTIP awards.  If the participant has been dismissed, it may be very difficult in practice to recover anything.  Moreover, the participant must give written consent to any deductions from wages.  For these reasons, it is advisable to require employees specifically to agree to the malus and clawback provisions in writing at the time when an award is first granted.

Where an amount is clawed back, it may not be possible for a participant to recover tax from HMRC for the repayment – there is still uncertainty about the tax law in this area.  Many companies therefore only seek to recover the net of tax benefit received by the participants.

Period of clawback

UK financial institutions are required to make variable remuneration awarded to material risk takers subject to clawback for a minimum of seven years from the date of the award, or 10 years for certain senior managers.

For other companies, the period varies considerably.  Some companies do not express a time limit, which may lead to a successful challenge based on proportionality.  Where a time limit is stated, clawback periods vary significantly from three years after the original grant date of an award up to five years after an award has vested or become exercisable.

Many LTIPs now provide for a two-year period after the vesting date, during which the participant is obliged to continue to hold the shares acquired, at least the net number after deducting any exercise price or tax liability.  For many companies, it would be convenient for the potential clawback period to coincide with the holding period, as implementing clawback would be made relatively easier.  However, in others it may take many years for true financial performance to become certain, and in these cases the clawback period should be rather longer.


Companies should ensure that malus and clawback policies, including principles behind the use of discretion, are clearly documented.  The IA Principles also state:

“It is also very important that the documentation for the LTIP and bonus rules, the remuneration policy and employee contracts are all consistent. Any communication around the payment of bonuses or LTIPs should also be consistent with and not contradict the malus and clawback provisions. Remuneration committees should develop clear processes for assessing executives against either malus and clawback criteria or how they will exercise discretionary clawback. Demonstration of process and evidence of decision-making is very important in the event that clawback is contested.”

We recommend that companies should review their current malus and clawback arrangements to ensure that they are fair and consistent and are clearly communicated to the participants potentially affected by them.

For further information contact Michael Landon.

Top Dogs and Fat Cats

Top Dogs and Fat Cats

This new book from the Institute of Economic Affairs was published on 8 May 2019. It is a collection of essays on executive pay, providing fascinating insights into the nature of high pay and making a compelling contribution to one of today’s most contentious issues.

The book is edited by Professor Len Shackleton of the University of Buckingham who has written the introduction which provides a critique of the top pay debate and summarises the individual contributions to the book.  He has also personally contributed an article on the consequences of “getting tough” on top pay. The contributors are a mixture of academics, practitioners and leaders of institutions.

Below is a synopsis of each contributor’s essay.

Why free marketeers should worry about executive pay

Why free marketeers should worry about executive pay,  by Luke Hildyard, Director of the High Pay Centre. The HPC has a view that the greed of executives in large corporations has led to ever increasing pay differentials which are unjustifiable and damaging to society.

This article begins the discussion by setting out the indictment against excessive CEO pay. Hildyard points out that executive remuneration in the UK has risen far faster than that of ordinary workers in recent decades, and claims that this has occurred without any corresponding improvement in company performance.  He dismisses the idea that international competition for rare talent justifies high CEO pay, pointing out that most firms promote their CEOs from within the company. His analysis suggests that long-established successful businesses (as opposed to entrepreneurial start-ups) are built on effective organisational systems rather than the abilities of the current incumbent CEO, who therefore has in many cases little influence over a company’s success. He draws attention, too, to elements of ‘crony capitalism’ that give many big businesses protected markets through their strong links to government.

Hildyard suggests that the ultimate providers of capital – the beneficial owners of company shares – would like to see more modest levels of executive pay, but they are separated from the operation of corporations by a web of financial advisers, asset managers and pension funds. These intermediaries are themselves highly paid and see no problem in paying company executives generously.

Listed companies are required to have remuneration committees which are independent of the company’s management structure, but members of these committees are themselves well-remunerated, are from similar backgrounds to company executives and often hold, or have held, executive posts at other companies. The committees are advised by consultants who (he claims) devise complex remuneration schemes to justify their existence, and act to bid up pay.

In Hildyard’s view, this unsatisfactory situation is undermining the case for capitalism. Free-marketeers should be worried about this, and he supports reforms including worker representation on boards and remuneration committees, more detailed disclosure of pay structures and a requirement for institutional investors to consult ultimate beneficiaries on pay issues.


Understanding the facts about top pay

Understanding the facts about top pay,  by Damien Knight and Harry McCreddie, of MM&K.  This essay draws from the findings of a previous article we have published in our e-news.  The text of the article can be found here.


The right and wrongs of CEO Pay

The right and wrongs of CEO Pay,  by Alex Edmans, Professor of Finance at London Business School. Drawing on his own and others’ academic research, he demolishes a number of myths associated with the case against CEO pay. For example, he shows that, contrary to popular belief, CEOs who perform badly do suffer financially – though he points out that it is their wealth rather than their income which is affected, because much of their remuneration is in company shares and share options which lose value with poor performance. While Edmans believes strongly in the reform of company pay, he argues that disclosure of CEO/average pay ratios (a feature of the Government’s policy) can lead to inappropriate conclusions and have unintended consequences which may harm workers. For example, firms may outsource low-paid work to improve their showing. Edmans argues that reform efforts should focus on the structure of pay schemes, rather than the level of chief executive pay. Current pay schemes are complex, opaque and encourage short-termism. In particular, he argues that the use of LTIPs (Long-Term Incentive Plans) allows for ‘gaming and fudging’. He advocates instead that pay should simply be in cash and shares with a long holding period. If shares can at the same time be awarded to employees, they will gain in line with CEOs, which will help address concerns about fairness.


What conclusions can we draw from international comparison of corporate governance and executive pay?

What conclusions can we draw from international comparison of corporate governance and executive pay?  by Vicky Pryce, Chief Economic Adviser at the Centre for Economics and Business Research.  In her chapter, Vicky Pryce examines high executive pay in an international context. She points out that the phenomenon of rising pay for top executives is found in many countries, not just in the US and the UK. In continental Europe she highlights Germany. Large German companies are often held up as a good example of corporate governance, with wider stakeholder interests, including employees, represented on supervisory boards. Many British commentators argue that such representation will tend to inhibit excessive pay awards.

However, as Pryce points out, CEOs of some leading German firms are paid extremely generously. She puts this down to the need to compete for international talent. Pryce also notes that, while the make-up of remuneration (the mix of salary, bonuses, shares and share options and so on) seems to differ in different parts of the world, high executive pay is also becoming a feature in Asia and Africa. She further points out that in some countries, for example China, recorded pay may understate the advantage executives enjoy from employment, as they also have access to a range of other benefits.

Pryce notes that there is considerable opposition to excessive executive pay in many countries, although opinion polls suggest that antipathy is, perhaps oddly, rather less marked in those countries where executive pay is highest. Governments have been inhibited in their responses, she suggests, because they are concerned that precipitate action might produce little gain. International cooperation might encourage them to overcome their scruples, but so far this has been limited to some minor European Union initiatives.


Two kinds of top pay

Two kinds of top pay,  by Paul Omerod, an economist, author and entrepreneur, who is currently a visiting professor in computer science at UCL. In his chapter, Paul Ormerod tackles the differing reasons for the high pay received by entrepreneurs, top sports and entertainment stars (which is in his view acceptable) and by executives of large corporations (which isn’t). Entrepreneurs provide a product or service which did not previously exist, and are thus able to secure monopoly profits, at least until competitors produce something equivalent or superior. These high returns (whether in salaries or in personal wealth through share ownership) are a necessary stimulant to invention and innovation. Top athletes, artists and performers possess unusual talents which have been increasingly rewarded in recent decades as advances in communications technology have created worldwide markets for their services. But their highly visible achievements typically require exceptional personal effort and are not subject to great popular resentment. By contrast, Ormerod argues, executive pay has risen for reasons which have little to do with improved performance and exceptional individual effort. Drawing on network analysis, he argues that board opinions in favour of high pay have spread for reasons which defy traditional notions of rational, optimal behaviour. Networks of non-executive directors, management consultants and remuneration experts have in effect facilitated successful rent-seeking by CEOs.


Top pay for women

Top pay for women,  by Judy Z. Stephenson and Sophie Jarvis. Stephenson is the David Richards Junior Research Fellow at Wadham College Oxford; Jarvis is Head of Government Affairs at the Adam Smith Institute.

Stephenson and Jarvis discuss the position of women in the top pay debate. While they recognise that women appear to be under-represented among top earners, they resist simplistic explanations in terms of discrimination and victimhood. They point out that the gender pay gap is widely misunderstood to involve women being paid less than men for the same work, when it is rather that men and women do different jobs, or work different hours, or have less continuous work experience. While this is partly the result of different choices and preferences, these are themselves gendered and reflect social, family and cultural expectations which are difficult to change. In an illuminating analysis, Stephenson and Jarvis see the labour market as essentially an ‘information market’ concerning job opportunities and workplace behaviours. Improving the flow of information to women is an essential element in improving employment trajectories and the possibility of higher pay. This may also be an analysis which has relevance to ethnic pay gaps: many ethnic groups are similarly under-represented in high-paying jobs. Stephenson and Jarvis welcome publication of gender pay gap data as a step towards improved information flows, while cautioning against ‘positive discrimination’ policies such as board quotas. The end goal should always be equality of opportunity rather than forced equality of outcome.


Public service or public plunder

Public service or public plunder,  by Alex Wild, a Director at Public First, a research and campaign consultancy, previously Research Director at the Tax Payers’ Alliance. Wild opens the discussion on the public sector, where the arguments for limiting high pay are apparently clearer. Wild points out that, particularly taking pensions and other benefits into account, lower-paid workers do markedly better in the public sector than in the private sector. But top earners in the public sector are paid substantially less than top earners in the private sector. However, few public sector jobs are directly comparable to those in the private sector. There are very limited opportunities in the public sector for independent judgement and actions, as politicians inevitably determine broad policy. There is also much less risk for people working in the public sector, as in most cases predetermined revenue comes from the government rather than the consumer. Senior civil servants, local authority chief executives and similar functionaries face many problems, but they do not operate in the same sort of competitive environment as that faced by company CEOs. It is therefore appropriate that they are paid less, though there should probably not be strict pay ratios or upper limits on public sector pay. Wild recognises, though, that the distinction between public and private is not as clear-cut as is often assumed. There are public sector leadership roles which do face competition, and private sector jobs which nevertheless have a close symbiotic relationship with the public sector. Here it may be appropriate to apply different criteria when determining pay.


Are vice-chancellors paid too much?

Are vice-chancellors paid too much?  by Rebecca Lowe, the Director of FREER, and liberal thinking think tank, and a Research Fellow at the Institute of Economic Affairs.  Lowe enlarges the public/private debate by looking at the specific problem of the pay of university vice chancellors, who straddle the two sectors. As so many people now have experience of university, and there is great concern over the levels of debt which graduates have accumulated, it is not surprising that the pay of vice-chancellors and other key staff has attracted considerable (perhaps disproportionate) attention, with the Office for Students now having a virtual power of veto over the pay of senior staff. Rebecca Lowe examines the issues in her chapter. Lowe points to the considerable range of institutions in the UK higher education sector, and suggests that they should not all be treated the same, whether in pay terms or anything else. She would prefer a formal segmentation of tertiary education as is found in some other countries. She notes that vice-chancellors are not particularly well paid in relation to their counterparts in the US, Canada or Australia, but points out that the roles in different countries may not be completely equivalent. Vice-chancellors are, however, paid reasonably well in relation to other staff in their institutions and Lowe argues against letting pay rip at the top end. While UK universities are less directly dependent on the public purse than they used to be, so long as significant government funding supports higher education it is reasonable that we should have special expectations about the way they are run, and how their staff are remunerated.


Getting tough on top pay: what consequences

Getting tough on top pay: what consequences, by Len Shackleton.  Professor Shackleton draws the themes together by considering the appropriate response to calls for action to rein in high pay in UK business.

He looks at various proposals.  First Government policies to use “naming and shaming” as a soft pressure for companies to reduce pay – in particular the reporting of the pay ratio between CEO pay and employee pay quartiles (required of quoted companies with 250 or more employees by the 2018 disclosure regulations), and the publicising by the Investment Association of shareholder resolutions which obtain less than 80% of votes at the AGM.  The regulations also require companies to report the reasons behind increases in the ratio and explain how the ratio is justifiable.  Shackleton is not opposed to these measures, but feels that the majority shareholders will have little interest in them and they could have negative consequences such as outsourcing, delisting or going private, or changing the structure of CEO pay by reducing the proportion of variable pay or increasing benefits.

Next he reviews proposals to put workers on the board.  He says that this has not been effective in restraining top pay in Germany and France and Labour Party plans to require one third of board positions to be reserved for employees are as much about introducing trade union influence to the board.  He thinks the measure will curb company growth.

He turns to the idea of executive pay caps.  Already public sector salaries above £150,000 have to be signed off by the Cabinet Office.  The Labour Party is planning a cap on salaries in companies which benefit from Government contracts.  Shackleton questions the practicality of this and points out the negative impact for Government procurement.

He believes that squeezing top pay will have a negative motivational effect on middle management, especially in organisations which employ scarce professional skills.  It could also have a serious effect on the UK’s ability to recruit top talent from aboard.  He points out that in 2017, 40% of FTSE-100 companies were headed by non-UK nationals.  The UK and France had less than 10% of top companies with non-national CEOs.

He sees great danger in the general perception that top pay needs to be curbed and a risk that any control will creep into other aspects company management.  Governments need to be careful in how they react to populist calls for action, and giving governments the power to fix pay ratios or even pay caps brings dangers which are not sufficiently discussed by those demanding action.  He finds it disappointing to see so many of those ostensibly favouring free markets and limited government intervention joining the clamour against high pay.

The effect on NEDs of proposed reforms to IR35

The effect on NEDs of proposed reforms to IR35

Some non-executive directors (NEDs) also provide consulting services to the companies on whose boards they sit and to others. How will the proposed changes to IR35 affect the provision of those consulting services?

HMRC published a consultation paper Off-payroll working rules from April 2020 on 5  March 2019. The consultation period closed on 28 May and the results will be taken into account when the Finance Bill is published in the summer. It seems likely, based on the consultation document, that existing public-sector legislation (Chapter 10, Part 2 of ITEPA 2003) will be the starting point for legislation governing the private-sector, but we will have to wait for the Finance Bill to find out for sure.

Since 2017, public-sector companies have been responsible for determining whether those they engage to provide services are employees or independent contractors. Private-sector companies have been spared this responsibility, which hitherto has fallen on the service provider. From April 2020, however, medium-sized and large private-sector companies will also be responsible for determining whether an agreement to provide services amounts to a deemed employment. No new tax is being introduced; only a change to the person responsible for determining if a deemed employment exists and for accounting for income tax and NICs.

Many individuals provide their services through a personal service company (PSC) which receives the fees paid for the services provided and from which the individual may receive a salary and possibly dividends. From 2020, private-sector companies will have to disregard the existence of a PSC and decide if the individual should be treated as an employee for tax and NIC purposes if engaged directly.

From next April, if a private-sector company decides that its agreement for the provision of services amounts to a deemed employment, it (and not the PSC) will be required to deduct income tax and NICs from the fees it pays, for those services.  This change is likely to mean more work for in-house HR teams and their (internal and external) legal advisers and could involve a substantial increase in the fee-payer’s employer’s NICs liability. If the new legislation follows the public-sector regime, three key consequences will flow from the requirement to make an assessment as to whether, for tax and NIC purposes, an employment relationship exists between it and an individual contractor:

• the company must inform its contracting party (agency or PSC) of the outcome of its assessment when the contract is made and may also have to inform the individual contractor of its decision;

• if any questions are raised about the company’s assessment, it has 31 days in which to respond; and

• the company must take reasonable care when making its determination as to whether a deemed employment exists.

This will affect NEDs who are also contracted to provide consulting services in the same way as it affects other contractors. A directorship is separate from an engagement to provide consulting services. Fees for carrying out the office of director are subject to income tax and NICs, payable through the PAYE system.  However, whether consulting fees are subject to the same deductions depends on the nature and terms of the agreement and on whether a deemed employment exists. It would, therefore, seem sensible for any agreement to provide consulting services to remain separate from an agreement to carry out the office of director.

For further information, contact Paul Norris.

FRC publishes a guide on financial reporting for smaller listed and AIM companies

FRC publishes a guide on financial reporting for smaller listed and AIM companies

The Financial Reporting Council (FRC) together with the Chartered Institute of Accountants have recently published a guide to help improve financial reporting within smaller listed and AIM quoted companies.

It is specifically aimed as a guide for Audit Committee members and provides top tips for the members to consider and ask themselves (including questions which should be put to the external auditors and the management team) during each of the following stages:

• Planning the audit

• Production of interim and annual reports

• Review of performance

• Formulating an action plan for next year

For the full report and more information click here.

Proxy advisers: proposed US regulations are misguided

Proxy advisers: proposed US regulations are misguided

This is a summary of an article written by Robin Ferracone, CEO of Farient Advisors, MM&K’s US partner in the Global Governance and Executive Compensation Group (GECN).

Proxy advisers, such as Institutional Shareholder Services (ISS), review company disclosures and provide cost-effective, independent research and voting recommendations to institutional investors, using the investors’ own voting guidelines.  This enables resource-constrained investors to cover hundreds, if not thousands, of companies and to engage with each as necessary to protect their investments.

Certain companies have criticised the increasing influence of proxy advisers, claiming that they are not fair, lack transparency, do not understand the company and are difficult to engage with.  In response, the US Congress has proposed legislation to require the advisers to register with the Securities and Exchange Commission (SEC) and to subject themselves to audits for conflicts of interest.

However, does it make sense to regulate organisations that provide voting recommendations to shareholders cost effectively?  The power of proxy advisers may be overstated: research by Glass Lewis has found that their investor clients vote differently from their recommendations 37% of the time.

Farient recently examined Say on Pay (SOP) votes cast for S&P 500 companies by 1,200 institutional investors, testing the hypothesis that smaller investors, with fewer resources, are more likely to follow ISS’s voting recommendations.  It found that:

• The largest 200 investors voted in line with the recommendations of ISS 84% of the time, while the smallest 200 investors voted with the recommendations 89% of the time.

• In contrast, looking at “AGAINST” recommendations only, larger investors are more likely to vote with ISS compared to smaller investors, 74% to 56% respectively.

• The top 20 investors, ranked by assets under management, vote very differently relative to ISS recommendations. For example, BlackRock voted in support of SOP resolutions 97% of the time, following ISS recommendations 90% of the time; while BNY Mellon voted in support of these resolutions 56% of the time, following ISS recommendations only 64% of the time

This evidence shows that institutional investors consult research by their proxy advisers to inform their voting decisions but in the end make up their own minds in casting their votes.

Farient, like MM&K, encourages its client companies to engage with their investors and proxy advisers, to help them to understand what is happening.  Directors should tell the company’s story and provide a compelling narrative to ensure that proxy advisers do their jobs while the directors take the opportunity to explain that they are doing theirs.

For further information, contact Mike Landon.

Creating successful bonus structures – five things to think about

Creating successful bonus structures – five things to think about

Whether you think in these terms or not, the way a company sets up, manages and then settles its bonus plans will have a direct impact on the behaviour of people within the organisation. Here are five thinking points in respect of creating successful bonus plans for 2019 and beyond:

1. Be clear about the company’s real values
This is the single most important element in achieving a successful bonus structure. Many companies in the “open communication” era will have a set of values describing how they want people to behave – these may be found on the walls of the office or in a handy booklet. However, underneath this will be the “real” values of the company – the values which may not make a good soundbite but which accurately describe how your enterprise functions most successfully. Taking the time to unlock this is crucial in all aspects of remuneration design – including bonuses.

2. Make sure it is affordable
Some might consider this obvious but it is crucial to make sure that payments are tied to affordability. There are few things more demoralising than bonus numbers having to be scaled back due to miscalculations or when a line manager has to revise down bonus levels due to wider company bonus issues. It is possible to put bonus plans in place where this issue is mitigated or even eradicated.

3. Back up bonus plans with hard decisions
If you have created a bonus structure which rewards people for ‘how’ they have done things as well as for ‘what’ they have done, then a potential management decision may arise when a “star performer” delivers results in a way that goes against the expressed values of the company. Will the leadership team be willing to risk upsetting the star performer by not paying out some or all of the bonus? If they are not then the company should reconsider the structure of the bonus plan, as a bonus plan which rewards “bad” behaviour will send a clear message that the values of the business can be ignored.

4. Decide how widely the bonus plan should apply
It is tempting, especially when money is perceived to be tight, to decide to reward only those who are “high performers”. However, research evidence on this point indicates that bonus plans created in this way may be more harmful than plans which provide bonuses across a wider range of performers. Consider ways in which your bonus plan could have wider applicability.

5. Communicate regularly
The most successful bonus plans should form part of the management tool kit of the business and not just be something that is pulled out at the end of the year. There are a number of things that can be done to embed the bonus plan within the review process in order to get the most out of it.

For further information or to discuss any questions you may have, contact Stuart James.

Launch of MM&K’s 2019 UK and European Private Equity / Venture Capital Compensation Survey

Launch of MM&K’s 2019 UK and European Private Equity / Venture Capital Compensation Survey

This month MM&K Launched its 24th annual Compensation Survey for the European Private Equity and Venture Capital Industry.  The 2019 Survey will provide participants with information on both quantum and structure in respect of salary, bonus plans, carried interest plans and co-investment plans. Through participation in our survey, participants will obtain data which allows them to:

• Make the best choices on remuneration structures for their businesses

• Have meaningful conversations on remuneration with partners and employees

• Improve staff retention and morale

If you are working in a Private Equity / Infrastructure / Venture Capital House and you believe that your firm might like to participate, please contact Margarita Skripina or request your questionnaire here.

To find out more about MM&K 2019 PE/VC Compensation Survey click here.


Gender Pay Gap – three things for businesses of any size to consider

Gender Pay Gap – three things for businesses of any size to consider

Legally, the reporting of the Gender Pay Gap (“GPG”) is only required by companies that have 250 or more employees who are based in England, Scotland or Wales. However, there are some important lessons for all organisations in respect of remuneration and the issue of divergence on gender pay can become an issue for any commercial enterprise.

Here are three points to consider with the passing of the second anniversary of reporting on the GPG.

1. Every company will have a GPG
Unless you have exactly the same number of people of each gender at each of the levels within your organisation, it is a mathematical certainty that you will have a GPG inside your organisation, based on the way that the reporting model is constructed.

Nonetheless, establishing your GPG – and then analysing it in order to understand how it has come about – is likely to be the most productive first step that an organisation can take to review its recruitment and promotion policies.

2. “Blind recruitment” may not be the answer
There is a notion that, either consciously or unconsciously, people tend to hire people in their own image . In order to overcome the first hurdle to this – getting a more diverse range of candidates through the initial CV vetting process – some firms have started using “blind” copies. These are documents which remove any trace of a person’s gender, or indeed any other area of diversity which may be from the subject of bias.

However, whilst there is some superficial logic to this, a number of studies, most notably a high profile one undertaken in Australia (see here for coverage**), indicates that this method does not always deliver the intended outcomes.

In our experience, better recruitment can come from identifying the core values of the business itself and then using these as guiding principles to develop and establish everything from recruitment processes to bonus and incentive structures. Given that values are not gender specific, using this approach has the advantage of making the recruitment process fairer to all.

3. Pay gaps may really be rewarding certain characteristics
Whilst some GPGs (or even part of a GPG) may be explained by “structural” differences, such as the number of people of each gender at each level of the organisation, among people who do similar jobs, the difference may not be so much about gender but may instead reflect varying individual skill-sets.

Discretionary pay awards might favour the most skilled negotiators but, whilst it would not be appropriate to ‘punish’ those who have strong negotiating skills, it would be appropriate to consider whether people who are hired for a different set of skills might need a different approach to their remuneration. There may be short term gains from supressing the remuneration levels of ‘quieter’ employees, but such an approach often leads to growing resentment and can become self-defeating. Once resentment over remuneration takes hold, it can lead to people making a “no way back” decision to leave a company for new pastures. It may, therefore, be more cost-effective for remuneration policy to take account of a person’s skill-set and motivators, as well as their job role.

For further information or to discuss any questions you may have, contact Stuart James.

2019 MM&K Private Equity / Venture Capital Breakfast Seminar

2019 MM&K Private Equity / Venture Capital Breakfast Seminar

In early April, MM&K held a PE/VC Breakfast Seminar for the participants in its last three PE/VC Compensation Surveys. At the seminar the 2018 Landscape of the Private Equity / Venture Capital industry was discussed. We also discussed the outlook on what 2019 may hold for the industry.

Prior to the event, MM&K organised a 2019 Pulse Survey, that was sent out to all of the invitees to the seminar, to get a picture of the most up-to-date Remuneration and Staffing trends in the UK and European PE/VC industries. Also, some of the interesting insights and findings from the 2018 MM&K PE/VC Compensation Survey were presented to compare with the results of the 2019 Pulse Survey.
The event opened with a networking opportunity for all the attendees and closed with a vocal Q&A session.

2019 MM&K Private Equity / Venture Capital Pulse Survey

This short  Pulse Survey focuses on the most recent developments in the UK and European Private Equity / Venture Capital industry. The Pulse Survey is run for the benefit of MM&K’s PE/VC Compensation Survey participants, and provides them with an outlook on the most up-to-date trends in compensation and staffing levels in the PE/VC industry.

91% of participating houses indicated a salary increase across all of their professionals at their most recent review date.  However, only 15% indicated increases in bonus levels for their investment professionals (over 2018).

About 70% of the participants indicated they focused on selected groups of staff when determining bonuses for last year’s performance. 86% of firms expect an increase in the number of investment professionals in 2019.

All in all, there remains perhaps a surprisingly high level of confidence in the industry, which is encouraging to see.

If you are working in a Private Equity / Infrastructure / Venture Capital House and you believe that your firm might like to participate, please contact Margarita Skripina or request your questionnaire here.

Recent HMRC announcements relating to EMI options

Recent HMRC announcements relating to EMI options

HMRC recently made new announcements about tax-advantaged Enterprise Management Incentive (EMI) share options in its Employment Related Securities Bulletin 31 (21 March 2019) and in updated Share Valuations guidance (1 April 2019).

Errors in notification of EMI options to HMRC

When a company grants an EMI option, it must notify HMRC of the grant through the online reporting system within 92 days of the date of grant; otherwise the option will not qualify for tax exemptions.

If the company realises that it has made a mistake in its notification about the grant of EMI options, the consequences depend on the period which has elapsed since the date of grant.

• If it is still within 92 days of granting the options, the grants can be re-notified through the online system within that 92-day period. The originally notified options should then be cancelled on the next EMI annual return.

• After 92 days, but within nine months of the original grant date, provided it has a reasonable excuse for not re-notifying within the 92-day deadline, the company should notify HMRC of the facts. If HMRC accept the explanation, they will issue a “reasonable excuse code” which will allow the company to re-notify the corrected options through the online system.  Again, the originally notified options must be cancelled on the next EMI annual return.

• After nine months of granting the EMI options, the legislation does not allow errors or omissions to be corrected. The company must notify HMRC of the error.  If HMRC regard the error as material and that it may cause the options to fail to meet the legislative requirements, the options will remain in existence but will not benefit from the EMI tax exemptions.

Impact of IFRS 16 on a company’s gross assets

The tax advantages of EMI options are intended only for small companies. The EMI legislation therefore does not allow EMI options to be granted if the company’s gross assets (including the gross assets of its subsidiaries) exceed £30 million at the date the EMI options are granted.  (The test does not need to be met at the time of exercise.)

HMRC has updated its guidance on the gross assets test to confirm that if a company uses international accounting standards, IFRS 16 will apply from January 2019 in determining the value of the company’s assets on its balance sheet.

Working time declarations by EMI option holders

At the time of grant of EMI options, the employees must sign written declarations that they spend at least 25 hours each week or, if less, 75% of their working time working as employees for the company or a qualifying subsidiary.  Employees have to make new working time declarations for each new grant of EMI options.

HMRC have confirmed that the declaration must be made at the time of option grant and it cannot be backdated.

Restrictions on shares to be acquired through EMI options

The option agreements for EMI options should contain all the terms and conditions of the options and any restrictions on the shares to be acquired on exercise of the options.

HMRC have stated that where restrictions on shares have not been notified to option holders at the date of grant the company should seek to remedy this as soon as possible.  HMRC’s advice should be sought as to whether any proposed retrospective action could result in the options losing their tax-advantaged status.

Valuation of shares for EMI options

Where shares to be acquired on exercise of EMI options are not listed on a recognised stock exchange, the value of the shares must be agreed by HMRC Shares & Assets Valuation (SAV) before the date of grant. This may be crucial in determining the taxable amount when the options are exercised.

In practice, where the shares are traded on AIM, SAV often agree to accept the quoted AIM price.  However, the value for unquoted shares must be based on an accepted share valuation methodology.

HMRC have confirmed that agreed valuations will remain valid for 90 days.  The previous limit was 60 days.

For further information contact Mike Landon