Coronavirus is having a major impact on charity events and at the time of writing we are in the midst of a so-called “lockdown”. This has resulted in a number of charities having to cancel or postpone their AGMs and other critical meetings.
Despite this, decisions about the charity still need to be made. During this period of uncertainty, the Charity Commission and OSCR have stated they will be relaxed about technicalities so what matters most now is making the best decisions you can, not how you can make them.
Whether or not you do decide to cancel or postpone charity meetings, it is important that you record your decisions with great care. Set out the matters discussed, other options considered, and the reasons for taking your decision. Where applicable, circulate any draft minutes as quickly as possible.
To ensure charity meetings follow the right procedure, we have the following guidance:
The governing document may state how much notice has to be given and how. If it does not, in the context of trustee meetings, ‘reasonable’ notice must be given. What is reasonable depends on the circumstances. In an emergency, it could be a matter of hours.
If a certain method of communication is intended to be used to conduct the meeting, for example Skype, the notice should set out details of the time of the meeting and the means of communication being used.
Send the notice in the way the governing document requires (if it does) but consider phoning around to let the trustees know if you think they might not get the notice that way in time. Notice in these circumstances could be verbal. So long as everyone attends or agrees to any period or form of notice, proper notice has been given.
Again, consult your governing document for details of how many people must be present for a meeting to be valid. The quorum must be present throughout the meeting and decisions will be valid as long as the meeting is quorate.
Some charities may have clauses in their governing documents that allow them to meet electronically, which would include virtual or telephone meetings. If there is no provision in your governing document for electronic meetings, trustees can consider making amendments to how or when meetings are held.
Video conferences are permissible (unless the governing document states to the contrary) as long as all those participating are able to communicate with each other.
Good modern governing documents may permit telephone-only meetings. If it does not and trustees decide to use this method of communication for their meetings regardless, the decision must be recorded detailing why the trustees considered it necessary to proceed in this way. Crucially, all participants must be able to communicate with each during the meeting.
Anyone challenging the validity of telephone meetings would need the prior consent of the Charity Commission or Court to bring proceedings in England and Wales. At this time, it would be hard to imagine that either would give consent.
MEETINGS OR BUSINESS/PROCEEDINGS
It is important to check whether or not the governing document expressly refers to trustee ‘meetings’ or whether it has a general statement that ‘the trustees may conduct their business/ proceedings a they think fit.’ If the latter, ‘proceedings’ or ‘business’ need not be ‘meetings’ requiring everyone to be both seen and heard which would allow for telephone calls, without the need of virtual meetings.
SOLVING ANY REMAINING PROBLEMS
If you still think you have a problem, consider one of these solutions:
- Unanimous approval
All the trustees may agree to hold a trustee meeting by telephone only and decisions made at that (quorate) meeting will be valid. It is advisable to obtain the written agreement of all trustees to proceed in this way (for example by email).
- Written resolutions
The governing document may allow the charity’s trustees and members (in the case of a charitable company) to make decisions by way of written resolution. In the case of the trustees, the governing document may state that decisions may be made by majority or unanimous approval in writing. In the case of a charitable company, any members’ written resolution will need to be in accordance with the Companies Act 2006. Unless your governing document states otherwise, ‘written’ and ‘in writing’ would include email.
If an important trustee decision still cannot be validly reached, trustees may decide to proceed regardless and then ratify the decision at a subsequent valid board meeting.
If you would like to discuss any of these issues further or have any legal concerns arising from Covid-19, please contact Harriet Morgan.
RELATED: COVID-19: FINANCE FOR CHARITIESCOVID-19: CHARITY GOVERNANCECOVID-19: SERIOUS INCIDENT REPORTINGCOVID-19:RESOURCES AND FUNDING