- July 25, 2019
Green Finance Strategy will increase companies’ disclosure requirements
On 2 July 2019, the UK Government published its Green Finance Strategy: Transforming Finance for a Greener Future, which is intended to ensure that “our financial system is robust and agile enough to respond to the profound challenges that climate change and the transition to a clean and resilient economy bring with them”. The paper includes proposals which will increase the requirements for listed companies and pension funds to disclose climate-related risks.
Climate change presents companies with far-reaching financial risks from physical factors, such as extreme weather events, and transition risks that arise from the adjustment to a low-carbon economy. There are also great opportunities: the expected transition is estimated to require around $1 trillion of investments a year for the foreseeable future.
There are already requirements for companies to disclose these risks and opportunities:
• The UK Corporate Governance Code 2018 requires that a company’s annual report should include a description of its principal risks, what procedures are in place to identify emerging risks, and an explanation of how these are being managed or mitigated.
• The FRC’s Guidance on the Strategic Report states “an entity should consider the risks and opportunities arising from factors such as climate change and the environment, and where material, discuss in its Strategic Report the effect of these trends on the entity’s future business model and strategy”.
However, the Task Force on Climate-related Financial Disclosures (TCFD), in its Final Report (June 2017), found that there were inconsistencies in companies’ disclosure practices and warned that inadequate information about risks can lead to a mispricing of assets and misallocation of capital. The report recommended a new framework for disclosing:
• The organisation’s governance around climate-related risks and opportunities.
• The actual and potential impacts of climate-related risks and opportunities on the organization’s businesses, strategy, and financial planning.
• The processes used by the organization to identify, assess, and manage climate-related risks.
• The metrics and targets used to assess and manage relevant climate-related risks and opportunities.
Action against climate change has become more urgent following the publication in October 2018 by the Intergovernmental Panel on Climate Change (IPCC) of its Special Report: Global Warming of 1.5 ºC, which highlighted the potential catastrophic impacts of global warming if it exceeds 1.5°C above pre-industrial levels. Following considerable political pressure, the UK Government recently legislated to reduce carbon emissions to net zero by 2050.
In the Green Finance Strategy, the Government set out its expectation for all listed companies and large asset owners to disclose in line with the TCFD recommendations by 2022. It has established a joint taskforce with UK regulators to “examine the most effective way to approach disclosure, including the appropriateness of mandatory reporting”.
In addition, from October 2019, occupational pension schemes will be required to publish their policy on financially material considerations, including those arising from climate change.
Companies will therefore need to demonstrate not only that they have a good understanding of how the risks and opportunities arising from climate change will affect them but also that they have integrated their response to these in their business strategies and governance procedures. The Government has promised further guidance on these issues. In the meantime, some companies will find it helpful to participate in initiatives such as CDP (formerly the Carbon Disclosure Project), the Transition Pathway Initiative (TPI) and Science-Based Targets.
Once companies have fully integrated their plans to deal with climate change and the transition to a low carbon economy within their business strategies, they must ensure that their performance targets for executive incentive arrangements are aligned with them. The Investment Association’s Principles of Remuneration state that “Remuneration committees may consider including non-financial performance criteria in variable remuneration, for example relating to environmental, social and governance (ESG) objectives, or to particular operational or strategic objectives. ESG measures should be material to the business and quantifiable”.
The Shell Sustainability Report 2018 demonstrates how Royal Dutch Shell has already included climate change targets as part of its executive incentives.
For further information contact Michael Landon.
- July 22, 2019
Competition for Talent in the UK Private Equity Industry is as keen as ever
There is no doubt that the Private Equity and Venture Capital landscape is becoming even more crowded, with new funds successfully being raised and an almost unbelievable level of “dry powder” available to be invested worldwide. Apparently, the global figure has recently reached $2.5trn.
Geographically, the majority of dry powder is still targeting North America, although that proportion has been declining in recent years. However, a steadily increasing proportion of available capital is focused on Asia. Europe-focused dry powder, meanwhile, has remained consistent, accounting for around a quarter of total available capital. Nonetheless, the amount available in Europe is at a staggeringly high level. There seems little doubt that the big corporate investors are more attracted to the private ownership model than the listed one in today’s heavily bureaucratic environment.
From MM&K’s own direct experience, we have seen a healthy number of new clients in London, who are choosing to deploy some of their capital into UK and Continental European markets. This has involved them deciding to set up brand new offices in London and they are now looking to recruit whole new investment and back office teams from the London market place.
MM&K conducted a pulse survey earlier this year, seeking to identify what the latest trends were in UK PE and VC compensation levels. The results indicated that the typical level of increase in salary for investment professionals below Partner level at the most recent pay round (i.e. mainly January 2019) was above 10%. We see this as an amazingly high figure.
PE firms that are looking to invest large amounts of money into European deals need to ensure they have a happy and committed workforce, particularly in their front offices. The last thing they need is to be worrying about investment staff being tempted to look elsewhere by large new salary and bonus offers.
We are currently marketing our 2019 PE and VC Compensation Survey and are pleased with the high levels of interest we are seeing from participating houses this year. We have no doubt that firms are recognising the need to know what is happening to PE pay levels right now.
There seems little doubt that the PE, VC, Infrastructure and Real Estate sectors are entering into a new boom time period in the UK. A small part of this may be to do with the low value of the £ at the moment making investing in the UK even more attractive, counteracting the uncertainty being caused by the debacle of the Brexit process. But we are sure the larger part is just simply to do with the wall of money out there just waiting to be invested. Retaining and keeping motivated the best talent among one’s investment professionals has probably never been quite so important as it is today.
- July 20, 2019
Loans from EBT – recent HMRC developments on disguised remuneration schemes
Disguised remuneration schemes include tax avoidance arrangements that seek to avoid Income Tax and National Insurance contributions (NICs) by paying scheme users their income in the form of loans. Typically, the loans will have come from a “third party” such as an Employee Benefit Trust (“EBT”). In the view of HMRC, the loans were never intended to be repaid and so they are no different to normal income and are taxable.
These plans became popular in the mid-2000s but have been the subject of HMRC review for a number of years – with settlement terms being issued in November 2017.
As part of the continued developments in respect of those who have not settled with HMRC a “charge” on any outstanding loans was introduced as from 5 April 2019. This applies to all loans made since 6 April 1999.
Importantly, the loans are effectively deemed to be taxable income and will be subject to income tax and NICs.
Whilst it is likely that any organisation which has made these loans, now or historically, is already dealing with them, anyone who is unsure whether the loans connected to their EBT will be liable for the charge should ensure that it is compliant with the regulations.
For further information or to discuss any questions you may have, contact Stuart James.
- July 19, 2019
All change at the FRC – or is it?
The Financial Reporting Council (FRC) is embarking on a transition programme to morph into the Audit, Reporting and Governance Authority (“ARGA”) accountable to Parliament, after coming under heavy fire from the Kingman Review and others, including a report by the Competition and Markets Authority (CMA) on competition in the audit sector, which prompted BEIS to launch its own review of audit quality.
Kingman was scathing, calling the FRC a “ramshackle house, cobbled together with all sorts”. Key planks in its transition plan are diversity, culture and audit reform, with the last of these attracting much of the attention in light of recent corporate scandals. Also, the CMA has proposed that accounting firms should split their audit and advisory divisions and that FTSE 100 and 250 audits should be carried out by two firms, one of which is not in the “Big 4”.
Whilst Kingman called for the FRC to have statutory recognition and funding, it remains dependent in part on contributions from audit firms. Not surprisingly, perhaps, responses from some of those firms focus on and raise a number of questions about the FRC’s increased budget proposals for 2019/20.
The FRC’s transition plan includes the recruitment of 80 additional staff. What will they do? Some of them will be needed to resource the planned increase in the number of corporate reviews it plans to carry out. However, questions have been raised about the FRC’s ability to recruit in large numbers in a period of change and uncertainty. Scottish accountancy body, ICAS, has made the thoughtful observation that FRC has struggled to recruit at senior level and, to operate optimally, needs to address any perceived skills gaps. It should consider whether “existing resources need to be recalibrated”. In other words, does the FRC have the right people? Is it fit-for-purpose?
Kingman picked-up on the FRC’s methods of recruiting top staff, observing that it did not often employ open advertising or use headhunters and sometimes relied on the alumni networks of the largest audit firms. When the FRC transforms into ARGA, Kingman recommends that there should be limited overlap in senior management. Time will tell if this comes to pass. The FRC has committed to promote transparency, integrity and diversity in business and to reverse a loss of confidence in audit. Success in achieving those noble goals will depend, in part, on there being no perception of double standards for regulator and regulated.
Whilst audit has grabbed the headlines, the FRC (ARGA in future) also sets the UK corporate governance and stewardship codes. One of the consequences of the transition to ARGA is that the new regulator will have enhanced powers. There is a strong implication that the new regulator will be tougher than the old.
High standards of corporate governance are essential for a sustainable and successful business community and the UK leads the way. The case for change at the FRC is strong. The adoption of Kingman’s recommendations is evidence of that. Few (neutrals) are likely to disagree that everything practicable should be done to ensure that recent audit scandals are not repeated or that examples of excessive executive pay are not checked. However, care is needed to ensure that the freedom of the majority is not restricted and the burden on them is not increased unnecessarily, through the behaviour of the minority. Political intervention in executive pay, for example, has increased. The risk that this might increase further when the regulator, ARGA, is accountable to Parliament should be resisted strongly insofar as the UK continues to operate a free market society. Quis custodiet ipsos custodes?
For further information contact Paul Norris.
- June 27, 2019
PE/VC Fund Manager Compensation Survey
MM&K has been running its PE / VC compensation survey for more than 20 years now. Our survey is not just about the numbers, although it does cover that very well. It also provides invaluable insights into trends and direction of travel in the Private Equity / Venture Capital industry. Not only do we analyse compensation trends, we look at headcount, revenues, the structure of management fees, carried interest plans and GP commitment levels.
In terms of some recent remuneration trends, MM&K’s Pulse Report conducted in April showed an average 10% increase in Base Salary across all investment professionals in the latest pay rounds. This is a staggeringly high figure!
The PE and VC world in the UK and Europe seems to be growing larger and larger. The competition for talent is increasing all the time as new houses are coming to and opening up in the UK with big chequebooks willing to pay handsomely to recruit the best talent.
Our PE/VC Compensation Report is only available to participants, so don’t miss out on the opportunity to participate in our 2019 PE/VC Compensation Survey. Our submission deadline is coming soon, so please do contact us now to find out more.
- June 27, 2019
Independent board evaluation: ICSA consultation
The UK Corporate Governance Code requires, for listed companies, annual evaluation of the performance of the board. The chair should consider having a regular externally facilitated board evaluation. In FTSE 350 companies this should happen at least every three years.
The Government Department for Business, Energy and Industrial Strategy (BEIS) received responses on its Insolvency and Corporate Governance consultation paper suggesting that the standards of independent board evaluations vary considerably. BEIS invited ICSA, the Governance Institute, to convene a group of representatives from investors, governance institutions and corporations to identify ways of improving the quality of board evaluations including the development of a code of practice.
The group issued a report for consultation in May 2019 and consultation responses are required by Friday 5th July.
The report begins with defining the purpose of board evaluation. It then reviews company practice in the FTSE 350. Finally, it offers, for consultation, a draft code for external evaluation providers and a draft set of principles for companies employing them. Following the consultation, the group will publish a report with recommendations and a revised draft of the code and principles.
On receipt of the report, BEIS will decide whether and how to act.
Purpose of board evaluation
The report defines the purpose as a process of self-improvement by boards rather than providing an assessment of board effectiveness for quality assurance. The group believes this is more realistic. It will also demonstrate to shareholders and other stakeholders the board’s commitment to achieving high standards for themselves and the company.
Analysis of current practice
The report provides an analysis of current practice in the FTSE 350, using data from 2018. In that year alone, 35% of FTSE100 and 32% of FTSE 250 companies had an externally facilitated board evaluation. Over a three-year period nearly all companies are compliant with the UK Corporate Governance Code provision. This figure is contrasted with only 37.5% of companies in Continental Europe over a three-year period.
In 2018 FTSE 350 companies received evaluation services from 32 individuals or firms, a consolidation down from 51 in 2012. Just four organisations undertook 65% of the work.
There was limited data on the process of selection, although anecdotally it appeared to be getting more rigorous, with less reliance on mates of the chair. Many boards had self-imposed limits on the number of times they would work with a reviewer (usually two or three times).
In 2018 only 41% of FTSE 350 companies provided a good explanation of how the evaluation was carried out. This percentage should improve with the new provisions of the 2018 Corporate Governance Code. The same applies to a description of the outcomes and actions resulting from the evaluation. In 2018 only 47% of companies provided this.
The report emphasises the need for a share responsibility between the company board and the external evaluator. The evaluator must be prepared to challenge the board’s perception of its own performance; the board in turn must be willing to allow the reviewer to do so.
The three proposed measures from the report are:
• A voluntary code of practice for providers of independent board evaluation, who would sign up to the code, in the same way that remuneration consultants (including MM&K) sign up to the Remuneration Consulting Code. An open question for the consultation is whether the code should be underpinned by an accreditation process or a process of oversight.
• A set of voluntary principles for companies to apply in managing their board evaluation.
• Guidance to companies on disclosure of the evaluation process and outcomes, to supplement the guidance issued by the FRC to support the 2018 Corporate Governance Code.
The report includes a proposed draft for each measure and invites comments on the draft. It leaves open whether application of the code of practice should be mandated. It also raises the possibility of including shareholders in the process for appointing the evaluator.
The code for reviewers
There are three elements:
• Competency and capacity – it provides a disclosure framework of activities and attributes against which code signatories have to demonstrate their experience and capability. The group invites view on how prescriptive this framework should be. It also wants advice on establishing processes for accreditation, oversight and monitoring that are rigorous but do no set excessive entry barriers to service provision. Should the oversight body comprise mainly code signatories or be mainly independent? What should its role be in:
• Monitoring compliance
• Operating a client complaints procedure
• Reviewing the operating of the code and revising it where necessary?
• Independence and integrity – the code is more prescriptive in this area – eg in dealing with conflicts of interest. The group is particularly interested in receiving advice on how to deal with conflicts of interest.
• Client engagement – again the code is prescriptive eg in setting the terms of engagement.
Voluntary principles for listed companies
• Appointment of the evaluator will be the collective decision of the full board or the nomination committee – not the decision of a single board member.
• The company will not appoint external reviewers with which it has other current commercial relationships or that have carried out more than two previous evaluations.
• Terms of engagement will be agreed before the review commences, specifying the objectives and scope of the evaluation and the process to be followed.
• The company will provide the reviewer with direct access to the board collectively and individually, and to all board and committee papers and to management and other stakeholders as necessary to meet the agreed objectives.
• The company will provide the reviewer with an opportunity to present their findings to the full board.
• The company will identify a contact with whom the reviewer can discuss in confidence any concerns about the management of the process (usually on of the independent board members).
• In the annual report, the company will state whether it has followed these principles and whether the board reviewer is a signatory to the code. The report advises against making it mandatory for companies to employ a code signatory as the reviewer.
• The reviewer will be asked to confirm the accuracy of the description of the findings and findings in the annual report.
Draft disclosure guidance for listed companies
The report also includes what is in effect an elaboration of the guidance provided with the 2018 Corporate Governance Code plus a description of the appointment and terms of reference of the independent reviewer. It suggests:
• How the evaluation has been conducted – objectives, scope, who involved, processes.
• The evaluator, selection process, previous involvement, whether a signatory to the code, whether monitoring implementation of recommendations.
• The outcomes and actions taken- the guidance recognises the commercial sensitivity of this, but encourages disclosure as far as possible to build trust.
• How conclusions will affect board composition.
For further information, contact Damien Knight
- June 25, 2019
Could negative bonuses be the future of variable pay for executives?
Have a discussion about pay, and in particular executive pay, and invariably someone will raise the idea of “negative bonuses”.
The concept is simple, if bonuses are meant to be a reward for delivering a performance that is above and beyond what is expected, then surely it is only ‘proper’ that an executive should have to pay something back to the company if results are shown to be below what was forecast.
Tempting as it may be to apply such simple logic, the protection afforded to all employees (including directors) under UK employment law means that such a position would be impossible to introduce without the explicit agreement of the individual (and even then there would probably be cause for constructive dismissal given the relative bargaining powers of the parties).
However, the core concept of “upside and downside” on bonuses is valid and there are at least two ways in which these might be successfully applied.
Firstly, there should be nothing stopping a company from introducing this as part of a new package for a new appointment into a role. From a practical perspective, this could be achieved through an adjustment to a mixture of salary levels and the levels at which bonuses are paid. The commercial effect would be for someone to be paid less than a predecessor if performance was below agreed target levels.
The second way in which bonuses could be adjusted downwards would be by using a fractional multiplier on the bonus itself. There are a number of ways this could be done. A method we have seen that is gaining popularity is to use performance management scores – where poor performance translates into a lowering of the bonus amount.
For further information or to discuss any questions you may have, please do contact Stuart James.
Please note that this concept of negative bonuses is different from the malus and clawback provisions discussed in a separate article in this newsletter.
- June 25, 2019
Annual Returns for Share Schemes – deadline 6 July 2019
For the tax year 2018/19, the deadline for filing the share schemes annual returns is 6 July 2019. The filing obligation applies in relation to any new share schemes implemented as well as existing share schemes.
HMRC do not send out any reminders. As there are automatic penalties for late-compliance, we recommend filing your online annual return without further delay.
Please note that new share schemes will need to be registered with HMRC first before returns can be filed. The registration process may take a week or two and therefore it is imperative that the registration process is completed before the 6 July deadline.
What needs to be done?
Filings of the annual returns are done using HMRC’s Employment Related Securities (ERS) Online Services which can be accessed through the Employer’s PAYE online account. This can be carried out by the company directly or by any agent authorised to act on its behalf.
Each employee share scheme requires a separate annual return. For group companies, only one company within the group needs to submit a return, irrespective of other participating group members.
What needs to be reported?
Each and every ‘reportable event’ that has occurred in the tax year 2018/19 must be notified to HMRC on the annual return. This includes:
• the grant of a new option to an employee
• the exercise of an option by an employee
• the acquisition of shares (or interest in shares) by an employee
• adjustment of options
• the assignment or surrender of options by an employee for consideration
• changes to the restrictions on shares and disqualifying events
• any other events which give rise to a tax charge in relation to employment related securities
If in any doubt as to whether to report a particular event, further advice should be sought.
For tax-advantaged share schemes, namely, EMI, CSOP, SAYE and SIP schemes, each relevant event also needs to be reported to HMRC. However, each of these schemes has its own form of online annual return which should be filed separately.
If there has not been any activity in the previous tax year, a ‘nil return’ should be submitted.
For more information about filing of annual returns, click here.
For further information contact Michael Landon.
- June 25, 2019
Update on the changes to the taxation of termination payments
A series of reforms have been introduced to the taxation of termination payments from 6 April 2018 following technical consultation. Although the reforms started out as simplification measures, they now “clarify and tighten” the taxation of such payments. In other words, the legislative changes effectively enlarge the scope of taxation of termination payments.
Position prior to 6 April 2018
Termination payments (which were not taxed under any taxation provisions) made to employees as compensation for loss of office were free of income tax and national insurance contributions up to £30,000.
The tax treatment of a PILON (payment in lieu of notice) depended on the contract of employment. If the employment contract provided for the employer to make a PILON, then the PILON was fully taxable. Conversely, if the employment contract made no provision for PILON, a PILON payment effectively constituted a payment of damages for breach of contract and could therefore be paid tax-free up to £30,000.
Foreign Service Relief was available to employees who have spent periods working abroad and were non-UK tax resident for part of the period covered by the termination payment. The Foreign Service Relief is effective after taking into account the £30,000 exemption.
Position from 6 April 2018
All PILONS, whether or not there is a PILON clause in the contract of employment, are taxed as earnings.
Termination payments are now split into two elements: (a) Post-Employment Notice Pay (“PENP”), and (b) the remaining balance. PENP represents the amount of basic pay the employee would have received had their employment been terminated with full and proper notice being served, to be determined by a statutory formula. This is subject to income tax and NICs.
The remaining balance, to the extent not subject to tax as remuneration or payment for restrictive covenants, is considered for tax relief (as statutory redundancy payment or compensation for loss of office, etc.). The £30,000 exemption is still available to relieve against the payment of the remaining balance. Any payment in excess of the £30,000 (“Excess Remaining Balance”) is subject to income tax but not national insurance contributions (NIC) as was the case prior to
6 April 2018.
The exemption from tax for payments for injury and disability does not apply to injury to feelings, whether on or before termination of employment, except where the injury amounts to a psychiatric injury or other recognised medical condition.
Foreign Service Relief has been removed for employees who are tax resident in the UK in the year in which their employment is terminated. However, the Foreign Service Relief continues to be available for employees who are non-UK resident in the year of termination.
Changes from 6 April 2020
Another significant proposed change to the taxation of termination payments is the alignment of income tax and NIC liabilities.
The government had announced that the NIC legislation would be changed so that employer’s Class 1A NIC would apply to the Excess Remaining Balance (see above). This change was initially intended to take effect from 6 April 2019.
The government recently announced that this major change will be delayed and will now take effect from 6 April 2020.
For further information contact Michael Landon.
- June 20, 2019
MM&K partners with The London Stock Exchange, First Flight and Board Excellence in a seminar for AIM companies on directors’ pay, governance and board effectiveness
On 20 June, MM&K Chief Executive, Paul Norris made a presentation at The London Stock Exchange (LSE) to an audience of AIM companies and advisers on designing fit-for-purpose remuneration policies. He was joined by Naomi Scott-Mackie a consultant in First Flight (non-executive search) and Kieran Moynihan (Managing Partner in Board Excellence) to reinforce the message that developing and maintaining a successful remuneration policy requires an independent, robust and well-functioning Board, operating within a sound governance framework.
An effective Board and a sound governance framework are essential to the overall success of any business, but independent non-executive directors (NEDs) and good governance are particularly important in the context of executive remuneration. AIM companies are not “quoted companies” and so are not bound by the Companies Act strict remuneration disclosure requirements. As AIM companies are not listed on the main board of the LSE, the UK Corporate Governance Code does not bind them. However, AIM companies are required to adopt a corporate governance code (many adopt the QCA code) identify it on their web-site and explain how they have complied with its principles. Instances of non-compliance and the reasons for it, must also be identified.
Corporate governance is catching up with AIM but with a lighter touch than for quoted companies listed on the main board. In an environment of lighter regulation (in which AIM operates) it becomes even more important to demonstrate to investors and other stakeholders how the Board takes account of their interests and that the company is being run sustainably for the benefit of all its stakeholders. This includes developing a remuneration policy that is demonstrably fit-for-purpose because it is competitive, supports the business strategy and is affordable (taking account of the economics of the business and stakeholder requirements).
There are more than 1,400 AIM companies. Some of them are large corporations, which could (there are those who might say should) be listed on the main board. Many are early-stage, growing companies with large appetites for cash to fund their growth but few of the resources available to their larger peers. They all need good relations with their stakeholders. What amounts to fit-for-purpose remuneration for one AIM company will not necessarily be fit-for-purpose for another. Fortunately, flexibility exists to tailor a good result.
The seminar was well-attended and there was a lively discussion after the three presentations concluded. It is clear that this combination of complementary presentations struck a number of chords with the audience. MM&K is pleased to have participated in this event in partnership with the LSE, First Flight and Board Excellence and looks forward to repeating the experience. The seminar slides are available here.
MM & K Limited advises extensively among AIM companies. For more information about executive remuneration, please contact: Paul Norris
- August 30, 2018
Investment Association register of AGM votes 2018
On 30 August the Investment Association published its analysis of voting in the 2018 AGM season. Company resolutions are added to the register if they fail to achieve an 80% vote in favour.
The picture is rather confused. For all listed companies the number of resolutions not achieving the hurdle dropped from 68 in 2017 to 61 in 2017. But the number in the FTSE 100 doubled from 9 to 18.
Most of the “failed” failed votes were for the advisory vote on remuneration implementation. Only 12 in total concerned the remuneration policy. This is remarkable in a year when many companies would have been coming back to shareholders to renew the policy since the three year validity would now be up.
The poor showing of a relatively small number of FTSE 100 companies is indicative of the intention of institutional investors to go after the high profile cases – WPP, Persimmon, BT. It is no indication of a general breakdown in corporate governance: indeed the improved general voting this year suggests practice is improving.
For more information contact firstname.lastname@example.org
- August 29, 2018
Pay Ratios Disclosure Regulations
Which companies do the pay ratio requirements apply to?
Quoted companies (not AIM companies) with >250 UK employees (average no. over the financial year). This includes all UK employees who have a contract of service with the company, regardless of hours worked, although it is the FTE pay figure that is used.
The draft regulations provide a ‘smoothing provision’ in paragraph 19B which provides for a two-year time lag before a company either drops out of, or is covered again, by the pay ratio disclosure requirement.
What are companies required to do?
Report in tabular form within their annual Directors’ Remuneration Report the ratio of their CEO’s latest Single Total Figure Remuneration to the 25th, 50th and 75th percentile of the company’s UK employees’ FTE remuneration.
Underneath the ratios table, companies must provide some supporting information and an explanation, including:
• the methodology chosen for calculating the ratios;
• the reason(s) for any changes to the ratios compared to the previous year;
• in the case of the median ratio, whether, and if so why, the company believes this ratio is consistent with the company’s wider policies on employee pay, reward and progression.
How many years of pay ratio reporting should be included in the table?
Going forward, the pay ratios table should cover a ten-year reporting period. The disclosure will build in the table incrementally to a ten-year period, with only one set of ratios therefore being disclosed in the first year of disclosure.
The three methods/options for calculating the pay ratio
The three options (A, B or C) essentially boil down to where the company gets their data from; collect it specifically for this purpose, use of gender pay gap data or use of other pre-existing data.
1. Calculate (on a day no earlier than three months before the end of the relevant financial year) the pay and benefits for every UK employee for the relevant financial year;
2. Identify the employees whose pay and benefits places them at the 25th, 50th and 75th percentiles;
3. Compare to the CEO to obtain the ratios.
Option B (use of gender pay gap information)
1. Use the most recent gender pay gap information to identify three UK employees whose remuneration place them at the 25th, 50th and 75th percentiles.
2. Calculate these employees’ pay and benefits for the relevant financial year;
3. Make any necessary adjustments to the pay and benefits identified in step 2 (e.g. if an employee identified using gender pay gap information receives an atypical variable pay in the relevant financial year);
4. Compare to the CEO to obtain the ratios.
Option C (use of other pre-existing pay data)
1. Use pre-existing pay information for UK employees as an alternative to, or in combination with, gender pay gap information.
More detailed information can be found in The Companies (Miscellaneous Reporting) Regulations 2018 – FAQ: https://www.gov.uk/government/publications/corporate-governance-new-reporting-regulations
Or contact email@example.com for further information
- July 16, 2018
The Companies (Miscellaneous Reporting) Regulations 2018
On 11 June the Government put before Parliament a substantial and important statutory instrument, “The Companies (Miscellaneous Reporting) Regulations 2018” (2018 Regulations) which gives effect to a wide range of corporate governance reporting improvements that BEIS has been working on ever since its Corporate Governance Green Paper of 29 November 2016 . These make several amendments to existing disclosure regulations, and are potentially quite onerous. There are exemptions, however, depending on company size. Regulation requirements:
• Production of a full statement in the Strategic Report explaining how Section 172(1) of the 2006 Companies Act has been complied with, i.e. how directors have met their obligation to promote the success of the company with regard for the interests of or impact on various stakeholders, including employees – applies ONLY to large companies (over £36m turnover plus 250 employees and/or assets of £18m) – unquoted companies can publish this on the website).
• Modifications to the director’s report (applies to large companies only)
– A statement summarising how the directors have had regard to the need to foster business relationships with suppliers, customers and others and the effect of that regard
– A comprehensive report on engagement with employees and its effect. Applies to companies with more than 250 employees (no turnover or assets limit).
• A statement of corporate governance arrangements including identifying the corporate governance code the company has chosen to apply in the year, how it has done so and reasons for departure from the code. This applies from 1 January 2019 to all companies (public and private) with more than 2000 employees and/or turnover of £200m and assets of more than £2 Bn. Note that in March the Stock Exchange brought in a broadly similar requirement for all AIM listed companies with no size exemption, to apply from 28 September. Unquoted and AIM companies are expected to use their websites for this purpose.
• Several modifications to the Directors’ Remuneration Reporting Regulations (2013), including
– explanation of discretion on pay awards
– provision of data on the pay ratio of the CEO to the median employee – extended now to upper and lower quartile (for companies with more than 250 employees)
– Impact of share price increase on the historical single figure of remuneration and on future pay as shown in the “scenario charts” for each director.
These changes have been introduced, in part, to reinforce the application of the revised UK Corporate Governance Code, issued by the FRC on 16 July. Contact firstname.lastname@example.org or email@example.com for advice on implementing the new disclosure regulations.
- July 16, 2018
Changes to the UK Corporate Governance Code
The Impact of the FRC’s proposed changes to the UK Code was the theme for the recent Remuneration Dinner held by MM&K – the latest in its series of dinners for CEOs and Non-Executive Directors. To read an overview of the evening click here. The final Code was issued on 16 July. The style of the code has changed substantially. Rather than “comply or explain” the new code has been characterised as “apply and explain” – companies adopting the code are expected to apply the 18 Code principles and then explain how they have applied them. There are still provisions in the Code, but the FRC is anxious that companies avoid a tick box approach to compliance (this is going to put pressure on the proxy agencies if they have to understand a more conceptual approach and provide commentary and judgment in their reports). Contact firstname.lastname@example.org or email@example.com for further information.
- July 16, 2018
Recent changes to the QCA Corporate Governance Code
The Quoted Companies Alliance (QCA), has also been revising its Code and made radical changes (the number of Principles has been reduced from 12 to 10). The Code was issued on 25 April. It is considered to be more flexible than the UK Code and more suitable for smaller companies. The existence of the two codes is particularly relevant to AIM listed companies – under a new AIM rule, AIM companies have to declare on their website, by 28 September, which “recognised” corporate governance code they apply. They have a choice of code. But they also have a separate choice of whether to prepare a remuneration report according to the Directors’ Remuneration Reporting Regulations (which only main market companies are obliged to follow) or to comply with the far more limited AIM rule 19 requirement to provide “details” of directors’ remuneration by applying, for example, the QCA specimen remuneration report in the QCA Remuneration Committee Guide.
For more information regarding the new code and the QCA specimen report, please contact firstname.lastname@example.org
- June 12, 2018
Making Executive bonus plans more effective
On 11 June 2018, MM&K hosted one of its regular dinners for Company Chairman, Non-executive Directors and Chief Executives. The topic for discussion at the dinner was “making executive bonus plans more effective”. A note of the discussion (which was held under the Chatham House Rule) can be accessed here.
In preparation for the dinner, MM&K produced some original research into bonus plan design practice. A copy of the report can be obtained by writing to email@example.com
- June 11, 2018
Reporting the pay difference between Chief Executive and staff
It was announced today by the Department of Business, Energy and Industrial Strategy (BEIS) that legislation would be laid before Parliament which states that larger UK Listed companies (with more than 250 employees) be required to publish annually the pay difference between the Chief Executive and staff, including an explanation of this difference.
To read the full press release by BEIS click here
- June 5, 2018
Malus and LTIP awards
The UK Corporate Governance Code states that long-term incentive plans (LTIPs) must include provisions to enable the company to withhold payments to participants in specified circumstances. It is now common for LTIP Rules to allow the Remuneration Committee to apply these ‘malus’ provisions and also to ‘claw back’ the benefit of awards which have already vested and been paid to the participants. The circumstances may include misconduct of the participant, misstatement of the company’s results and situations which have caused reputational damage to the company.
In a recent case (Daniels v Lloyds Bank Plc), the High Court decided that a new malus clause, added to LTIP Rules, could not apply to awards which had already been granted before the amendment was made. The court also concluded that the Board of Directors could not decide that no shares should be delivered to the participants at all after the Remuneration Committee had determined the level of vesting. This ruling was based on the actual circumstances and may not be applicable to other plans. However, companies will need to ensure that malus and clawback provisions are carefully worded and that proper processes are used if they are ever applied.
- June 1, 2018
Share plan annual returns deadline
Annual share plan returns for the tax year ended 5 April 2018 must be submitted online to HMRC no later than 6 July 2018. Returns must be made for the tax-advantaged share plans – SIP, SAYE, CSOP and EMI – and also for unapproved share plans. Items to be reported include grants of share options and conditional share awards, acquisition of shares by employees and any other taxable events. In addition, if any amendments have been made during the tax year to key features of SIP, SAYE or CSOP plans, the company must confirm that the plans continue to comply with the relevant legislation.
Please note that, even if there are no reportable events, a nil return must still be submitted. HMRC has reported that, for the 2016-17 tax year, more than 7,000 companies had to pay penalties for missing the deadline.
- May 30, 2018
SAYE permitted missed contributions extended from six to 12
The regulations for Save-As-You-Earn/Sharesave share option schemes allow employees to miss up to six monthly contributions. These contributions can be made up in later months and the bonus date, when options become exercisable, is delayed accordingly. From 1 September 2018, this maximum ‘savings holiday’ is to be extended to 12 monthly contributions. The new provision will apply to all SAYE option holders, not just those who may be on special leave; but an amendment to the scheme Rules will be required in some cases.