The following information has been designed to give you an understanding of the role of a company secretary and the legal obligations involved. If you want to start your own limited company and would like an experienced company secretary then SFS can fill this role.
Does every company need a secretary?
No. The Companies Act 2006 amended the rules to allow private limited companies to exist with just one director so long as the company's articles did not expressly require a secretary.
Does a company secretary need any qualifications?
The company secretary of a private limited company (LTD) needs no formal qualifications. It is up to the directors to ensure that a person has appropriate knowledge and experience to act as a secretary of the company. In the case of a public limited company (PLC), the secretary will normally be expected to be professionally qualified as a lawyer, accountant or company secretary, though previous experience as secretary of a PLC may also be taken into account. Disqualification as a director either by order of court or through bankruptcy will prevent an individual acting as a company secretary unless a court specifically allows this.
Does the secretary have to be a UK citizen?
No. Except for occasional restrictions imposed by the government on the activities of certain foreign nationals a director or secretary can be of any nationality and can live anywhere in the world.
What are the duties of a company secretary?
They are not specified by the Companies Act, but are usually contained in an employment contract.
Special duties
As the secretary is an officer of the company, they may be criminally liable for defaults committed by the company. For example failure to file 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.
Other duties
The company secretary usually undertakes the following duties: Maintaining the statutory registers. These are -the register of members
-the register of directors and secretaries
-the register of directors' interests
-the register of charges
-for public companies only, the register of interests in shares. 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 Companies House forms as appropriate. You may also use the annual return Form AR01 in some circumstances if the return is due at the convenient time. Changes of directors' and secretaries' details must be notified within 14 days. This is just an example as there are many other forms that need to be delivered to the Registrar.
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. 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. 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. You must send accounts at least 21 days before a meeting at which they are to be laid. Keeping, or arranging for the keeping, of minutes of directors' meetings and general meetings. 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.
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.
Complimentary duties
Particularly in small companies, the company secretary is often expected to take on other duties as well. At all times, the company secretary's principal responsibility is to the directors. It may make sense for the company secretary to take on other administrative responsibilities. For example: -PAYE and payroll.
-VAT registration.
-insurance and pensions.
-Managing the company's premises and facilities. Company secretaries are often asked to take on responsibility for legal matters in general. They might be required to advise the directors on their duties, and to ensure that they comply with corporate legislation and the Memorandum and Articles of Association of the company. A company secretary might also be asked to ensure that they comply with other legislation, including data protection and health and safety legislation. They might be asked to sign leases on behalf of the board, or to act as signatory for the board more generally, for example on the bank account or statutory documents. A company secretary might be asked to take responsibility for arranging adequate insurance to protect the company and the directors. Company secretaries are also frequently involved in negotiations with outside advisers, including accountants and lawyers.
Does a company secretary have any powers?
No, but the Companies Act allows them to sign re-registration applications, for example, the re-registration of a limited company as unlimited. The secretary is also allowed to sign most of the forms prescribed under the Companies Act.
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 Companies Act.
What could go wrong?
The job of company secretary in any company involves some potential liabilities, as shown below. In practice, it is the qualified company secretaries, employed by public companies, with employment contracts which spell out all the responsibilities, who are most likely to be prosecuted for any serious wrongdoing. An unqualified company secretary, employed by a small private company, is unlikely to be prosecuted unless he or she is knowingly involved in serious wrongdoing. In any company, it is the company's directors who have primary legal responsibility. Directors and company secretaries could be held jointly liable for failures to meet the provisions of the Companies Act (except for filing company accounts, for which directors alone are responsible).
What are the potential liabilities?
You could incur fines or even criminal charges for failure to file the Annual Return. You could, potentially, be disqualified , prosecuted or made liable for company debts if the law is broken. You could be subject to criminal proceedings, if the company trades fraudulently, or if company funds are misappropriated. If you are also a director, you could be held personally liable for the company's debts, if there has been wrongful trading. Failure to ensure that the directors are acting properly in the conduct of the business could leave you with personal responsibility for its debts.
