EAT Clarifies Whether Stock Options Should Be Considered When Calculating Unfair Dismissal Awards

Author:Ms Melanie Crowley
Profession:Mason Hayes & Curran
 
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The Employment Appeals Tribunal ("EAT") recently ordered a cyber security firm (the "Company") to pay a senior director (the "Employee") €105,000 as a result of his unfair dismissal. In calculating his compensation, the EAT determined that the Employee's stock options should be excluded from its assessment of loss.  

Background

The Employee was employed by the Company from December 2013 to June 2015. His main responsibility was to establish the Company's Cork office. He was promoted to the position of senior director in early 2015 as a result of his "exceptional performance". His salary increased from €75,000 to €96,250. Shortly after, he was also granted an additional 2,000 stock options.

The vesting schedule for the stock options was over a 48 month period. A portion of the shares were to vest at the end of each month with the first month of vesting being January 2015. 

The Employee was summarily dismissed in June 2015. 

The employer admitted that the Employee had been unfairly dismissed so the issue before the EAT was to determine the most appropriate remedy for the Employee.

Reinstatement rejected

The Employee sought to be reinstated, as he believed the stock options would be of significant value if the employer announced a public offering on the stock market. This was despite the fact that the Employee had obtained new employment three months after being dismissed.

The EAT decided against reinstatement, holding that compensation was the correct remedy in this case.

Stock options a "separate matter"

Having decided that compensation would be awarded to the Employee, the EAT then considered whether the Employee's stock options should form part of any remuneration when calculating his compensation.

The EAT considered the letter of offer to the Employee, his contract of employment and the stock option agreement.

The letter of offer stated that as a "separate matter" to the Employee's employment, he would be granted the option to acquire 17,500 shares in the employing company at the discretion of its board.  The stock option agreement stated that if the Employee's stock options vested by the date of his termination of employment, he would be entitled to exercise them for a period of 90 days following that date. The Employee confirmed to the EAT that he had exercised his stock options which had vested by the...

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