What's the new position?
With effect from 6 April 2008 a private company will no longer need to appoint a company secretary.
If there is no secretary in office:
- anything that is required to be sent to or served on the secretary may be sent to or served on the company
- anything that is required to be done by or to the secretary can be done by or to a director of the company
- anything addressed to the secretary is treated as being addressed to the company.
Effect on existing private companies
If company's articles specifically require a company secretary to be appointed this will override the Act, and the secretary must remain in office until this requirement is removed from the articles.
Provisions in the company's articles, (including Table A) which require or authorise the secretary to do certain things, or which specify the manner or terms for appointing or removing a secretary, do not amount to a requirement to have a company secretary. Regulation 99 of Table A falls into this category.
It is unlikely that a company will have an express requirement to appoint a secretary in their articles and so most existing companies should be able to benefit from this change and remove their secretary if they wish.
Practical considerations for existing companies
- Review your articles. Does the wording require you to have a secretary? If necessary, remove this wording from the articles.
- If you remove your secretary, you will need to file form 288b at Companies House and update the register of secretaries.
- Think about who will be able to sign for the company. If you use a seal, check what your articles say about who can attest the seal. Does it require both a director and secretary? If your company has a sole director, consider amending the articles to allow that sole director to attest the seal. If you don't have a seal or you want to execute documents without using the seal then the Act deals with this for you, allowing a director to execute any document in the presence of a witness.
- Consider other practical implications:
- Are third parties, such as banks, used to receiving secretary certifications? Will they accept a director certification instead?
- Who will do all the compliance jobs that the secretary usually does – filing returns, keeping registers etc? For assistance with this, see our directors' compliance service For assistance with checking whether your articles require you to appoint a secretary, or in making any changes that may be needed to your articles to allow you to remove the secretary, please contact Helen Goose
Effect on new private companies
After 6 April 2008 new companies may be formed with just one participant who can act as both director and first shareholder.
If no secretary is appointed, there is, of course, no need to maintain the register of secretaries. However, if a secretary is appointed the register of secretaries must be maintained and Companies House notified of the appointment and any changes in the office, in the normal way.
Practical considerations for new incorporations
- Consider whether you want to appoint a company secretary or not.
- If you decide not to appoint, think about who will do all the compliance jobs that the secretary traditionally did. Do you need assistance with this? If so. see our directors' compliance service.
- Do you want to include in your articles an express provision to require the company to appoint a secretary? If so please contact Helen Goose
Effect on public companies
This change does not affect public companies, which are still required to have a company secretary.
