An employee ownership trust (EOT) holds a permanent or long-term shareholding in a company on trust for the benefit of all the company’s employees. An EOT provides indirect (trust) employee ownership of a company.
Among the different forms of employee ownership, the trust model may, in particular, be chosen instead of employees owning shares directly because it can be used to organise an employee buy-out, without requiring finance from employees, provides a long-term ownership model and is straightforward to administer. This trust model of employee ownership has been promoted since 2012 by the UK Government and is now the main form of employee ownership in the UK. The EOT ownership model is also recognised in the US (where it may be labelled differently, such as perpetual trust, steward-ownership trust) as an alternative to the ESOP.1
There are three basic forms of employee ownership: Direct Ownership of shares by all employees as individuals; Indirect Ownership on behalf of all employees by the trustee of an employee trust; and the Hybrid Model which combines both direct and indirect ownership.2 An EOT is a form of indirect ownership in which the trustee of the EOT holds shares in a permanent or long-term trust on behalf of all employees. The EOT can also be used in a hybrid model, that is, where the EOT has a shareholding, held alongside employees as individual shareholders (and/or possibly other investors). The EOT shareholding must act in conjunction with an organisational structure that ensures employee engagement within the relevant company (or group) for the company to have employee ownership.3
An employee ownership business model is a way of achieving benefits for a business, its employees, and society.4 The trust model has the following characteristics in comparison to employee ownership models involving direct employee share ownership:5
Research in EOT owned companies showed higher scores in the values of fairness, trust, excellence, humility and courage among employees, with no significant differences between seniority levels.7 Research into EOT owned companies also shows that employee ownership works well to meet the aspirations of the millennial generation, and reveals that millennials value many characteristics of the employee ownership business model, such as profit sharing and personal development, more than previous generations did.8
The EOT was promoted by the UK Government (along with other types of employee ownership) in the years following the 2012 Nuttall Review of Employee Ownership. The EOT was recognised in UK tax law in 2014 when tax exemptions were introduced to encourage its use. The Nuttall Review and the EOT tax exemptions have helped increase the number of UK employee-owned companies.9
The UK has a long history of employee ownership in various forms, including the trust model. In 2012, Graeme Nuttall was appointed as the UK Government’s independent adviser on employee ownership to “work with Government to identify the barriers to employee ownership and help find the solutions to knock them down”.10 The resulting Nuttall Review advocated, in particular, the merits of employee ownership through a trust, which provides a long-term structure and one suited to achieving employee engagement and to supporting employee buyouts. The Nuttall Review supported tax changes to raise awareness of employee ownership and contained various recommendations which were broadly supported by the Government.11 Graeme Nuttall worked with HM Treasury regarding possible new tax incentives.
In Autumn 2012, HM Treasury and HM Revenue and Customs confirmed support for implementing the Government’s response to the Nuttall Review and that the Government was considering further incentives to support this objective.12 The Government recognised that a range of employee ownership models may be legitimately applied, including employee benefit trusts that are not aimed at avoiding tax.
In 2013, the Government announced that following the findings of the Nuttall Review, it had decided to introduce two tax reliefs to encourage, promote and support indirect employee ownership structures.13 These exemptions would go some way towards supporting existing and newly-created indirect employee ownership structures in the same way that tax advantaged employee share plans already encourage direct employee share ownership. The tax reliefs also promote awareness of the sector and increased the attractiveness of indirect employee ownership structures for businesses which might be considering converting.
The UK Finance Act 2014 created a definition of an EOT for UK tax purposes. This definition limits the discretion of the EOT's trustee. The EOT must not permit:
The Finance Act 2014 also introduced:
There are a number of conditions to be satisfied in order for these exemptions to apply.15
A key requirement for a trust to qualify as a UK EOT is that it meets the “equality requirement”. Prior to the Finance Act 2014, an employee trust (even one used for employee ownership purposes) would usually be drafted so as to meet certain less onerous requirements in the Inheritance Act (1984) relating to employee trusts (especially section 86). Under such employee trusts a trustee may make a distribution on bespoke terms to a selected beneficiary, whilst, in contrast, an EOT requires all eligible employees to benefit from any distributions on “same terms”. This means EOT beneficiaries must either all receive an equal amount, or their benefit may vary by reference to their remuneration, length of service, or hours worked.
A similar concept applies to income tax free employee bonuses. All individuals employed by the employer or another group company must be eligible to participate and (subject to limited possible exceptions) must all participate on the same terms.
The Nuttall Review and EOT tax changes have stimulated wider interest in employee ownership. Some existing employee-owned firms have changed their ownership structure to incorporate an EOT.16 Added together newly created EOTs and deemed EOTs (pre-existing employee trusts that meet certain requirements), now represent more than three quarters of companies in the UK employee ownership sector and over half the total number of employees.17
There is some use of EOTs in the US.
In 2014, the international design firm Wimberly Allison Tong & Goo (WATG) became the first US company to create employee ownership through an English EOT.18 WATG decided against a sale to an ESOP. Leadership wanted to avoid the cost and time requirements of creating and maintaining an ESOP, including legal work, administration, and valuation. They also wanted to avoid simply replacing their repurchase obligation from existing buy-sell agreements with an ESOP repurchase obligation.19
In 2017, an Ann Arbor company, Arbor Assays, also became owned by an English EOT.20 This method of employee ownership was adopted to maintain the company perpetually for the benefit of its employees. Financially, the employees will benefit because, in addition to their basic pay, the company will annually allocate revenue not needed for company operations or future investment to participating employees.
Other US companies have also moved to this form of trust ownership using trusts established under domestic trust laws including:
Employee Ownership Australia is working to introduce the EOT model to Australia.26 27
Original source: employee ownership trust. Shared with Creative Commons Attribution-ShareAlike 3.0 License
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