Unfair redundancy and unvested share options

clandestino_bgd

Hi,
I am near the end of the consultation period with the known outcome. However the process (pool selection, aim to find me replacement job, etc) is obviously flawed in such a clear way that I was offered the 2nd version of compromise agreement in last 7 days.

Ok, they want now to pay me my notice (3 months) and 2 months ex-gratia. Fair enough, but my problem is in the fact that I have lots of money in share options that are vesting in October and which I got, surprisingly as the key employee (under former management).

Now, In Options Agreement, as a leaver I loose the right to exercise those options, but WOULD EMPLOYMENT TRIBUNAL CONSIDER THIS AS MY FINANCIAL LOSS AND THE THE RESULT OF (IF PROVEN) UNFAIR REDUNDANCY AND GIVE ME COMPENSATION AWARD?

Thanks,
Clandestino

zzzLazyDaisy

If, having heard the evidence, the tribunal conclude that you have been unfairly dismissed, they would then have to consider what the chances were of you remaining in employment with this company until October, but for the unfair dismissal, and what the prospects would have been of you cashing in your shares at that point.

But the short answer to your question is yes, this is something the tribunal can take into account when considering compensation. Whether they would take it into account, though, is a matter for conjecture, since it depends on all the facts, including the rules of the share save scheme, and also what the chances are of you still being in employment with the company in 8 months time, and indeed whether the shares will be worth anything at that point.

getmore4less

check for "good" leaver status schemes sometime have different rules.

The other option is to reject the CA unless they put in more compensation for the loss.

How long have you been there 2 months is not a lot especialy if it included normal redundancy

Dirk_Gently_2

If they are offering a compromise agreement they're doing it to redcue their legal liability, as what is being "compromised" is your right to take legal action against them.

But always remember that what is offered via a CA is an offer, not an entitlement - you have no legal right to anything that is not laid out in your contract or yours by right under statuary redundancy provisions. What is being offered via a CA will by definition be better than the statuary entitlement.

So in the end you have a straight choice if you can't negotiate a better CA offer - either take what is offered via the CA or decline it, accept what is your statuary right and then take legal action for anything extra you believe you're legally entitled to.

clandestino_bgd

Thanks Very much for your help. Really awesome!

check for "good" leaver status schemes sometime have different rules.

The rules in scheme are standard, if I become the Leaver my unvested options will lapse.
And there is no "Good Leaver" in the Scheme, only Leaver (an employee who ceases to be an Employee)

But the short answer to your question is yes, this is something the tribunal can take into account when considering compensation. Whether they would take it into account, though, is a matter for conjecture, since it depends on all the facts, including the rules of the share save scheme, and also what the chances are of you still being in employment with the company in 8 months time, and indeed whether the shares will be worth anything at that point.

Could you please elaborate? Why shouldn't I be in employment in October 2013 unless unfairly dismissed?
If I do not have any breech of contract or misconduct, how ET can calculate these chances? If I prove that my redundancy is not genuine, and very possibly that couple of months after I leave they will hire somebody else with my salary range and my skills (probably different title name), what else ET needs to look at to conclude that I lost my opportunity to exercise the share options which I was awarded for my excellent performance (not part of the initial contract)?

Thanks again for helping me out to understand by manoeuvring space in negotiations.

Milan

zzzLazyDaisy

clandestino_bgd wrote: »

Could you please elaborate? Why shouldn't I be in employment in October 2013 unless unfairly dismissed?

I don't know. I don't have all the facts and I don't have a crystal ball. It can take a year to get to tribunal in a complex case, or if there are a lot of witnesses, for example.

Lots of things can happen in the time it takes to get to tribunal which may influence that decision. For example, the company might have further rounds of redundancies with the likelihood that you would have been made redundant fairly before October; or the company could go bust, or you could be knocked down by a bus tomorrow and have to give up work, or you might have a very poor disciplinary record and poor prospects of making it to October. No jobs are permanent or secure in the current economic climate.

If the tribunal is satisfied that on the balance of probabilities you would still be in employment with this company in October, and that under the rules of the scheme, you would have been able to cash the shares in and take the money in October, then the tribunal will take that loss into account when calculating compensation.

If they are satisfied that the real reason for the redundancy was to deprive you of this right, then they will decide that this was an unfair dismissal - but you would need evidence of this, rather than conjecture.

This may be an obvious point, but you should be raising this with the employer and seeking to negotiate an uplift on the severance payment to take into account the fact that this dismissal will deprive you of your contractual rights should you remain in employment until October.

clandestino_bgd

Thanks very much. It just provoked me to research further.
I think that the article below is the answer I was looking for, but again thank you for your kind help.
you can google:
Option+Schemes+clarity+covers+a+multitude+of+sins

Milan