Company Secretary update – August 2014

This quarter the key highlights are:

1. The Co-operative and Community Benefit Societies Act 2014

The Act came into force on 1 August, consolidating and generally updating industrial and provident society law. For an overview of the main points please refer to our ebriefing, An Act of housekeeping: revisiting IPS law.

Following on from the introduction of the Act, the Financial Conduct Authority (FCA) has issued some guidance on the impact on societies registered before 1 August. This confirms that such organisations should be referred to as ‘registered societies’ rather than co-operatives or community benefit societies, even on their websites and stationery (although there is no obligation to update your website and stationery as a result of the Act coming into force, but you may wish to do this over time). The guidance can be found here.

2. BIS consultation on Company filings

BIS (Department for Business, Innovation and Skills) has published the Government’s response to its consultation paper on simplifying a company’s statutory filing requirements (see ‘Red Tape Challenge: Company Filing Requirements’).

The Government has decided that instead of requiring companies to file an annual return at a set point every year they will be required to ‘check, notify changes if necessary and confirm’ the statutory information at least once in a 12 month period. Private companies will also have the option of whether or not to keep a register of directors (including their residential addresses), secretaries and members. Companies House also proposes to increase its use of electronic communications. There are no timescales in place for the amendments to the Companies Act 2006 as yet, but we’ll keep you posted.

3. Board diversity

The EHRC (Equality and Human Rights Commission) has published guidance on how companies can comply with equality law when making appointments to Boards (see ‘Appointments to Boards and Equality Law’). The EHRC’s view confirms that it will generally be unlawful to select a Board Member because of their gender, although companies are permitted to address any disproportionately low participation on Boards by enabling or encouraging applications from a particular gender (provided that selection is based on merit).

Spotlight: Execution of documents

This quarter we have received a lot of queries regarding the correct execution of documents. Key points to remember are:-

1. your constitution and, if you have them, standing orders should set out the way in which documents are to be executed;
2. there are different formalities for entering into ‘deeds’ (usually required for land transfers, mortgages and powers of attorney, for example) as opposed to ‘simple contracts’;
3. your organisation can execute a deed by affixing its common seal, if it has one. The fixing of a common seal must usually also be ‘attested’ by a witness authorised under your constitution (or standing orders, if permitted by the constitution);
4. alternatively, a deed can be executed by either two ‘authorised signatories’ (Board Members or the company secretary) or, for companies registered under the Companies Acts, a Board Member in the presence of a witness who attests the signature;
5. a power of attorney will be required to authorise officers (who aren’t Board Members) to execute deeds; and
6. the execution of a simple contract will usually be governed by your standing orders, which should state which officers have authority to sign contracts up to specified financial limits.

Please contact Gemma Bell on 0121 214 3596 or gemma.bell@anthonycollins.com; Victoria Jardine on 0121 212 7431 or victoria.jardine@anthonycollins.com or Sarah Greenhalgh on 0121 214 3607 or sarah.greenhalgh@anthonycollins.com.

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