The recent decision in Ponticelli Limited v Gallagher provides a salient reminder that the right to participate in a share incentive plan can transfer to a new employer under the Transfer of Undertakings (Protection of Employment) Regulations. The right applies even if the employee’s right to participate in the plan arose outside of the contract of employment. The employee will be treated as a leaver under their old employer/transferor’s scheme, and the transferee employer must then provide a scheme of substantial equivalence for the employee to participate in post-transfer.
While this is a Scottish case, the decision is binding on the employment tribunals throughout the UK.
