The ESS Start-Up Concessions have created Fintech haves and have-nots. If your company is not entitled then your employees will be materially worse off.
A number of actions can result in genuine start-ups not being entitled including IPO's and capital raisings. Back door listings can be particularly problematic. Surprisingly the ten year rule also rules out many companies still in start-up phase.
The key is to plan and understand the implications in advance
New Law (from 1 July 2015) The default taxing point for options will be changed so that employees will not generally have to pay income tax until they can realise a benefit from their options. This will benefit employees of all companies. Eligible start-up companies will also be able to offer shares or options to their employees at a small discount and have tax deferred until sale (for options) or the small discount exempt from tax (for shares).