The provisions of Part 12 of the Companies Act 2006, changing the law relating to company secretaries, came into force on 6 April 2008. These provisions, whilst not quite leading to the company secretary becoming an extinct species, are likely to mean that they will become thinner on the ground as far as private companies are concerned.
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What changed on 6 April 2008? |
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The main changes which came into force on 6 April are that private companies are no longer required to have a company secretary, although they may still opt to have one. NOTE: Public companies are still required to have a company secretary. |
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Will private companies have to amend their Articles of Association to reflect the changes brought in by the Act? |
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A private company whose articles immediately before 6 April 2008 expressly required it to have a company "with a secretary" must amend their articles (to remove that requirement) if they no longer wish to have a company secretary. |
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What happens to the existing company secretary of a private company? |
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The existing secretary will remain in office unless and until he is removed or resigns. He does not have to be replaced unless the Articles specify this. |
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What is the procedure if a private company opts not to have a secretary? |
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1. The company's Articles need to be checked and amended if required. |
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2. Any newly amended Articles must be filed with Companies House. |
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3. The secretary needs to be removed (or be asked to resign) and any associated employment and contractual issues surrounding this resolved. (You should bear in mind that the secretary may have employment rights relating to his position as secretary and take legal advice if you are in any doubt as to whether there could be employment law implications of removing a person (or asking a person to resign) from office as company secretary. |
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4. A Form 288b should be lodged with Companies House and the duties of the outgoing secretary should be transferred to another individual. |
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Who takes on the company secretarial jobs that the company secretary used to perform (if he is removed/resigns)? |
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There will be no change to the administrative burden undertaken by the company as a result of the change of company secretary, the tasks will simply be completed by someone else. |
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.