COMPANY SECRETARIES' DUTIES AND RESPONSIBILITIES

EVERY COMPANY MUST HAVE A SECRETARY: Section 283(1) of the Companies Act 1985.

A SOLE DIRECTOR CANNOT ALSO BE THE SECRETARY: Section 283(2)

DOES A COMPANY SECRETARY NEED ANY QUALIFICATIONS?

The secretary of a PUBLIC COMPANY needs to be qualified. The secretary of a private limited company does not have to be qualified.

Section 286 of the Companies Act 1985 (qualifications of company secretaries) says that it is the responsibility of the directors of a public company to 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 the secretary of the company. In addition, the secretary must also be a person who :

• 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 (other than a private company) for at least 3 out of the 5 years immediately before his/her appointment as secretary;

or

• is a barrister, advocate or solicitor called or admitted in any part of the UK;

or

• is a member of any of the following bodies :

• the Institute of Chartered Accountants in England and Wales;
• the Institute of Chartered Accountants in Scotland:
• the Institute of Chartered Accountants in Ireland;
• the Chartered Association of Certified Accountants;
• the Institute of Chartered Secretaries and Administrators;
• the Institute of Cost and Management Accountants;
• the Chartered Institute of Public Finance and Accounting;

• is a person who, because he/she holds, or has held, any other position or is a member of any other body, appears to the directors to be capable of carrying out the functions of secretary of the company.

WHAT ARE THE DUTIES OF A COMPANY SECRETARY ?

The duties of a company secretary are not specified by the Act, but are usually contained in his/her contract of employment.

Special duties

As the secretary is an officer of the company under section 744 of the Act he/she may be criminally liable for defaults committed by the company, eg. failure to file, in the time allowed, details of any change in the company’s directors’ and secretary’s details 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 and 131 of the Insolvency Act 1986)

Other Duties

In addition the company secretary usually undertakes the following duties:

1. 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); (section 422 for Scottish companies)
   • (for public companies only) the register of interests in shares.
2. Ensuring that statutory forms are filed promptly. You cannot simply send a letter to notify the Registrar of Companies that you wish to change the situation of the company’s registered office or that changes have been made among directors or secretaries or their particulars. You should normally use forms 287 and 288a/b/c as appropriate. The annual return form 363s may also be used in some circumstances if due at the convenient time. Changes of directors’ and secretaries’ details must be notified within 14 days. There are many other forms which need to be delivered to the Registrar.
3. Providing members and auditors with 21 days written notice of an annual general meeting and 14 days written notice of a meeting other than 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.
4. Sending the Registrar of Companies copies of every resolution or agreement to which section 380 applies, eg special and extraordinary resolutions.
5. Supplying, not less than 21 days before a meeting at which the company’s accounts are to be laid, 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 : section 238 of the Act.
6. Keeping, or arranging for the keeping, of minutes of directors’ meetings and general meetings.
7. Supplying copies of the company’s accounts and other documents to those entitled to them, and ensuring that people entitled to do this 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.
8. Although it is no longer a requirement for a company to use a company seal, if it does so the secretary is usually responsible for its custody and use. (Company seals are not supplied by Companies House or by the Department of Trade and Industry. They can be purchased from law stationers or company formation agents).

DOES A COMPANY SECRETARY HAVE ANY POWERS?

The Act does not give the secretary any specific powers, but they do allow him/her 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);
• 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 Companies Act.

WHAT RIGHTS DOES A COMPANY SECRETARY HAVE ?

The rights of a company secretary depend on the terms of his/her contract with the company. The secretary has no special rights under the Companies Act.