The most common disqualifying event occurs if an employee chooses to leave your company. But there are other possibilities, which we will explore at length below.
What is a disqualifying event?
The HMRC defines employees eligible to participate in an EMI share-options scheme as those who:
- Spend at least 25 hours per week or 75% of their total working time as a company employee,
- Do not hold more than 30% of the company's shares, and
- Do not hold options worth more than £250,000 (at the time of grant).
If one or more of these conditions change — for example, if an employee's total working time drops below 25 hours per week — or if the employee leaves the company altogether, they are no longer eligible to participate in the scheme.
There are also disqualifying events for your business. You will no longer be eligible to offer an EMI options scheme if you:
- Hire more than 249 employees,
- Have assets over £30m,
- Become majority owned or controlled by another company (i.e., you are acquired), or
- Begin conducting business in one of the restricted activities, including banking, insurance, leasing, property development, farming, shipbuilding, and others.
The restrictions on gross assets and number of employees only apply at the time of grant of EMI. If these numbers are exceeded nothing happens to existing EMI Options, but the business cannot issue new ones until those criteria are met once again.
What happens if an employee has a disqualifying event?
If there is a disqualifying event involving an employee, they will no longer be eligible to participate in the EMI options scheme.
If a disqualifying event occurs, employees have 90 days from the time of the event to exercise any options they have obtained as part of the EMI scheme. This must be done to maintain the EMI beneficial tax treatment of a 10% Capital Gains Tax (CGT) versus 20%.
If the employee does not exercise their options within this 90-day period, they will lose the beneficial tax treatment and be subject to income tax on any vested shares. Note that exceeding the maximum gross asset or employee number limits does not disqualify existing EMI options, it just means the business cannot issue new ones.
Please visit this page to learn more about the taxation of EMI options after a disqualifying event. You can also consult this page on the GOV.UK website for further information on disqualifying events regarding employees.
What happens if my business has a disqualifying event?
If your business no longer qualifies for an EMI options scheme, due to a change in ownership or another event, you will no longer be able to issue EMI options to new or current employees.
As noted above, any shareholders will have 90 days from the time of the disqualifying event to exercise any vested shares they have obtained as part of the EMI scheme. If they do not exercise within that period, they will not be able to take advantage of the 10% CGT, and any gains in value of the options from that point until they are exercised will be liable for income tax.
Disqualifying events are notified to HMRC as part of the annual notification process.
Please consult this page on the GOV.UK website for further information on disqualifying events regarding your business.
Can EMI options be cancelled even if there is not a disqualifying event?
Yes, EMI options can be cancelled either by mutual agreement with the option holder, or unilaterally by the company if the option holder does not meet specific criteria that is associated with the option (for example, staying with the company).