Posted: 30/07/2024
Since the pandemic, many charities of all sizes have moved to virtual meetings, either some, or all of the time. What is now seen by many as the default is, however, not always permitted by a charity’s governing document.
Up until April 2022, the Charity Commission was operating a temporary permission for all charities to hold electronic meetings, regardless of the provisions in their governing documents. For over two years now, that has no longer been available, and many charities will have continued holding virtual meetings that may not be permitted in their own governance. The Charity Commission has now issued updated guidance (CC48) on how charities can deal with this, including information on what it considers to be good practice.
The answer is: ‘it depends’. Specifically, it depends what a charity’s governing document says on this point. Electronic communications and online meetings need to be expressly permitted in that document. If they are not, then there is a risk that decisions taken by virtual meetings will not be valid.
If the governing document does not expressly allow virtual meetings, then this should be updated. This can often be done in a straightforward way, such as by way of a trustees’ resolution under s280A of the Charities Act 2011, which came into force earlier this year.
If/when the governing document does allow electronic communications and virtual meetings, then the next point to consider is how to ensure those meetings are effective.
Once governance provisions are in place to permit emails, text messages and video calls to be used, it becomes a matter of establishing and maintaining good practice.
The Charity Commission’s starting point for this is to consider the legal definition of a meeting which, as it notes, is not a settled point of law. It therefore focuses on the purpose of a meeting, and then turns to the practicalities, such as:
Charities wishing to hold virtual meetings should review their current practice in light of the points above and put in place policies and procedures designed to enshrine good practice.
Charities of all sizes will no doubt be using informal messaging streams, such as WhatsApp, to contact each other. Anyone who has returned to their mobile phone to find a deluge of notifications will appreciate how easy it is for informal chat communications to risk overstepping into actual decision-making. On a more formal point, could a messaging app be used for specific communications, to notify trustees of a meeting, for example?
Again, this comes down to what is permitted in the governing documents and what is appropriate in the circumstances. An emergency situation, for example, might necessitate speedier communication to enable the charity to respond appropriately. If this is something that a charity might need to do, then the governing documents must be set up to permit this. Consider when this might be necessary, and regulate the use of messaging apps in a way that is appropriate for the charity.
Some charities will find themselves having made plenty of decisions since April 2022 in ways that may not be provided for in their governing documents. There is a risk that those decisions may not have been validly made, if they contravened the charity’s own rules and regulations.
In these circumstances, charity trustees should act urgently to review any potentially affected decisions, in a way that does comply with their governing documents. This is likely to be by a meeting in person, or by a virtual/hybrid meeting, if they have since updated their governance to permit this.
Charity trustees should also audit their existing governance arrangements, reviewing their current practices. Changes should then be considered if the governing documents are failing to keep pace with how the charity now carries on its business, or how things may change in the future.
It is good practice for a charity to regularly review its governance to ensure that it remains fit for purpose. Governance documents are the rules and regulations that the charity sets for itself and can be amended to move and grow with a charity over time. Some amendments will require permission from the Charity Commission, but many can now be made without this, with the appropriate advice and guidance.
If your charity would like assistance in carrying out an audit of its governance, or you are concerned that you may have made trustee decisions that are not in accordance with your governing documents, then please do contact one of our charities lawyers for advice.
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