With the exception of funding difficulties, the most common query from charity clients during the covid-19 pandemic has related to the holding of meetings. Current requirements on social distancing mean that physical meetings cannot take place. In this article, we set out the legal position and current guidance and advice from the Regulators.
First of all - check your governing document
The first thing trustees should do is to review their charity’s governing document: this may be known as Articles of Association, a constitution or a trust deed. Trustees must familiarise themselves with provisions in relation to holding meetings and AGMs, including papers to circulate, procedures and timescales for giving notice, the minimum number of trustees that must be present, and so on. Knowing and understanding this is the best starting point.
Office of the Scottish Charity Regulator (OSCR)
OSCR has always regarded itself as a proportionate regulator of Scottish charities and its response to the current circumstances is evidence of this. In its Covid-19 Guidance for Charities, it has a specific section on meetings and governance.
The key points to note are:
- While acknowledging that accounts are generally approved at formal meetings, charities should try to submit their accounts and annual returns to OSCR on time. However, if a charity is unable to do so, it will not be penalised for late submission in current circumstances.
- If you are required to hold an AGM by a certain date or within so many months of your last AGM, in accordance with your governing document, OSCR will be ‘understanding and proportionate’ if this is not adhered to.
- OSCR is content for charities to hold virtual/teleconference meetings (for further practical points on such meetings, please see below) even if the charity’s constitution is silent on holding meetings by that method. Depending on a charity’s legal form and how recently its governing document was updated, trustees may already have specific provision allowing for virtual meetings to take place. If not, and this will apply to many charities, OSCR recommends holding meetings electronically anyway in the current circumstances.
- The quorum (the minimum number of members or Trustees required to attend validly to convene a meeting) is normally set out in the charity’s governing document and should continue to be adhered to. If current circumstances prevent a quorum being achieved, charity trustees may have to take steps to amend the governing document. Such amendments must be made in accordance with the procedure set out in the governing document and trustees must notify OSCR of any change within three months, although we would recommend you do it as soon as practicable.
- At all times, trustees should ensure that their decision-making is robust and carried out validly in terms of their governing document. Trustees must also ensure that they are acting in the best interests of the charity and in accordance with charity trustees’ legal duties.
The Charity Commission for England and Wales (CC)
For English and Welsh registered charities and cross-border charities, the CC has also produced Covid-19 guidance for the charity sector. In the main, the guidance is similar to that published by OSCR in relation to meetings and AGMs, but a key difference is that if trustees are going to be late filing their accounts and annual return and the filing deadline is coming up, the CC asks that you email them in the first instance.
Virtual Meetings and Practical Tips
Depending on who your trustees and members are and how many you have, it may be possible to hold a virtual AGM. Charities that are ‘one-tier’ (that is, the trustees and members are the same body of people) may find virtual AGMs relatively easy to manage if the technology is in place. If a charity’s membership is wide and a virtual meeting impractical, trustees should decide whether to cancel or postpone the AGM. We recommend that trustees keep members informed of decisions, so that they are seen to be acting in an open and transparent manner.
If trustees do decide to convene a virtual meeting, here are a few tips which we hope you find helpful:-
- Once you have decided to hold a virtual meeting, you should record this decision and the reasons for it (especially if virtual meetings are not your regular practice) in the minutes of the meeting, in accordance with the rules of good governance.
- Research and decide which virtual platform you are going to use. You need to consider if all attendees have access to the necessary equipment to participate properly, or whether some may need simply to dial in to the meeting and share audio only over the telephone.
- You may wish to ask attendees to ensure their microphones are on mute while the Chair or other presenter is speaking and unmute them only when it is time for discussion/questions. This may be helpful if there are a large number of attendees. Ideally, only the Chair and one other speaker would be unmuted at any one time in very large virtual meetings, to reduce background noise and interruptions.
- For the sake of confidentiality, we recommend that you ask attendees to ensure that anyone else in their household cannot overhear the discussions, and that any smart speakers in the room are turned off for the duration of the meeting.
Some attendees of virtual meetings may live on their own and a virtual charity meeting may be the first time they have seen or spoken to other people in several days. Especially in a period of extended lockdown like this, we recommend that some time is included in the meeting agenda and timings for brief social conversation to catch up with each other, just as you would normally exchange greetings and pleasantries at physical meetings. This may be of more value to those attending than you might imagine.
If you have any questions on the above or any other charity matter, please do not hesitate to contact our Charity Law Team on firstname.lastname@example.org.