Companies House - Directors and Secretaries Guide

Role and duties of a Company Secretary

1. Does every company need a secretary?

From 6^th April 2008 a private company does not have to have a company secretary (unless its articles of association explicitly requires the company to have a secretary).  An existing private company that decides to terminate the appointment of their secretary must notify that termination to Companies House on a form 288b.  A public company still needs to have a company secretary.

When you appoint a secretary you must notify Companies House of the appointment, any change of details or the termination of the appointment

From 1^st October 2008 any person who has not reached the age of 16 will cease to be a director. Companies House will put a notice on the public register to show that the appointment has ceased. The company will have to amend its register of directors’ to show that the appointment has ceased. Consequently, if the company is left without an eligible director it will be in default and will need to appoint at least one director

2. Does a company secretary need any qualifications?

The company secretary of a public limited company needs to be qualified as explained below. The company secretary of a private limited company needs no formal qualifications.

Section 286 of the Act (qualifications of company secretaries) says that the directors of a public limited company must make sure, as far as reasonably possible, that the secretary, or each joint secretary, is a person who appears to them to have the proper knowledge and experience to carry out the functions of company secretary. In addition, the secretary must also be a person who:

• is a member of any of the following bodies:
  • the Institute of Chartered Accountants in England and Wales;
  • the Institute of Chartered Accountantsof Scotland;
  • the Institute of Chartered Accountants in Ireland;
  • the Chartered Association of Certified Accountants;
  • the Institute of Chartered Secretaries and Administrators;
  • the Chartered Institute of Management Accountants;
  • the Chartered Institute of Public Finance and Accounting; or
    
    
• held the office of secretary (or assistant or deputy secretary) of the company on 22 December 1980; or
  
  
• held the office of company secretary of a company (except a private company) for at least 3 out of the 5 years immediately before his or her appointment as secretary; or
  
  
• is a barrister, advocate or solicitor called or admitted in any part of the UK; or
  
  
• is a person who appears to the directors to be capable of carrying out the functions of company secretary, because he or she holds, or has held, any other similar position or is a member of any other body.

3. What are the duties of a company secretary?

They are not specified by the Act, but are usually contained in an employment contract.

Special duties

As the secretary is an officer of the company under section 744 of the Act, they may be criminally liable for defaults committed by the company. For example failure to file - in the time allowed - any change in the details of the company's directors and secretary, and the company's annual return.

The secretary may also have to make out a statement of the company's affairs if an administrative receiver or a provisional liquidator is appointed, or if a winding-up order is made. (Sections 47 (Section 66 for Scotland) and 131 of the Insolvency Act 1986.)

Other duties

The company secretary usually undertakes the following duties:

(a) Maintaining the statutory registers. These are:

• the register of members (section 352);
• the register of directors and secretaries (section 288);
• the register of directors' interests (section 325);
• the register of charges (section 407 or 422 for Scottish companies); and
• for public companies only, the register of interests in shares (section 211).

(b) Ensuring that statutory forms are filed promptly. You cannot simply send a letter to notify the Registrar that you wish to change the situation of the company's registered office or that changes have occurred among directors or secretaries or their particulars. You should normally use forms 287 and 288a, b or c as appropriate. You may also use the annual return Form 363s in some circumstances if the return is due at the convenient time. Changes of directors' and secretaries' details must be notified within 14 days. There are many other forms that need to be delivered to the Registrar. See What you have to send to Companies House, for more information.

(c) Providing members and auditors with notice of meetings. You must give them 21 days written notice of an annual general meeting. You must give them 14 days written notice of a meeting which is neither an annual general meeting or a meeting to pass a special resolution. If you are the secretary of an unlimited company, the written notice required is 7 days.

(d) Sending the Registrar copies of resolutions and agreements. You must send the Registrar copies of every resolution or agreement to which section 380 applies, for example special and extraordinary resolutions, within 15 days of them being passed.

(e) Supplying a copy of the accounts to every member of the company, every debenture holder and every person who is entitled to receive notice of general meetings - also copies demanded by anyone under section 239 of the Act. You must send accounts at least 21 days before a meeting at which they are to be laid - see section 238 of the Act.

(f) Keeping, or arranging for the keeping, of minutes of directors' meetings and general meetings.

(g) Ensuring that people entitled to do so, can inspect company records. For example, members of the company and members of the public are entitled to a copy of the company's register of members, and members of the company are entitled to inspect the minutes of its general meetings and to have copies of these minutes.

(h) Custody and use of the company seal. Companies no longer need to have a company seal but if they do, the secretary is usually responsible for its custody and use. (Company seals can be bought from legal stationers and company formation agents.)

4. Does a company secretary have any powers?

No, but the Act allows them to sign the following re-registration applications:

• the re-registration of a limited company as unlimited - section 49(4) of the Act;
• the re-registration of an unlimited company as limited - section 51(4);
• the re-registration of a public company as a private company - section 53(1)(b); and
• the re-registration of a private company as a public company - section 43(3).

The secretary is also allowed to sign most of the forms prescribed under the Act.

5. What rights does a company secretary have?

They depend on the terms of his or her contract with the company. The secretary has no special rights under the Act.