Role of the Company Secretary

April 2008

The Role of the Company Secretary

The Companies Act 2006 introduced several changes, one of which relates to the role of the company secretary. From 6 April 2008, there is no longer a legal requirement for a private company to have a company secretary, thus a limited company can have a sole director and no company secretary.

However, a private company can always choose to include in its articles a requirement to have one. Where a private company decides not to have a company secretary all the duties that a company secretary would ordinarily carry out will still need to be discharged. Those duties will then be performed by either a director of the company or such other person authorised to act in that behalf by the board.

On the other hand, a public company still needs to have a company secretary.

The company secretary of a private company needs no formal qualifications, however, the company secretary of a public limited company must be qualified.

The company secretary has a few duties set out in the legislation, and may be given others by the articles or the directors. Generally, the main responsibilities of a company secretary are administrative in nature.

The typical responsibilities of a company secretary are ensuring that documentation is completed and returned to Companies House and signing off company accounts.

The secretary is an officer of the company and as such may be criminally liable for defaults committed by the company - e.g. failure to file within allocated time changes in directors' and secretary details and company's annual return. However, it should be noted that only directors have any legal responsibility for the contents of the documentation sent to the Companies House.

The company secretary normally undertakes the following duties:

Maintaining the Registered Office (Change of registered office - Form 287)

All companies must have a registered office which is the 'home' of the company to which all official documents, notices and court papers have to be sent. The address must be a physical location, not just a post office box. The Company Secretary is responsible for ensuring that the Company registered address and number appears on all company stationary. The registered office address can be changed by shareholders passing a special resolution and then sending a completed Form 287 to Companies House in order to record the change.

Company Meetings & Resolutions

The Company Secretary is usually responsible for arranging company meetings and taking notes and keeping the minutes as the official record. Also, the Company Secretary must send copies of resolutions to Companies House within 15 days of them being passed by the company.

Change of accounting reference date (Form 225)

Every company has an accounting reference date, which is the date by reference to which the company's financial year is determined. A company must prepare accounts for each financial year. The accounting reference date can be changed by the Directors approving the change at board meeting and then by using a change of accounting reference date form (Form 225) which must be sent to Companies House.

Annual returns (Form 363)

All companies, whether trading or not, must keep accounting records, and all limited companies must submit accounts for each accounting period to Companies House. Companies must file their annual accounts with Companies House within 10 months of their Year End. This is usually done by the accountant, but the company secretary is ultimately responsible for ensuring this task is done. Directors are personally responsible for preparing accounts and submitting to Companies House. Failure to do so may result in a criminal conviction and record for the director(s) and will result in financial penalties for the company. Every company must deliver an annual return to Companies House at least once every 12 months. Please note that the annual return and the annual accounts are different documents both of which must be filed at Companies House. If the annual return is filed late or not at all, the company and its director(s) and secretary can be prosecuted.

Change of directors and secretary and their details (Forms 288a, 288b or 288c)

All companies must notify any change of a company's directors or secretaries to Companies House. All changes to directors' and secretaries details must be submitted to Companies House within 14 days of the change. Form 288(a) is used for the appointment of an officer (a director or a secretary), Form 288(b) is for the termination of an officer's appointment (resignation, removal, death etc) and Form 288(c) is used for a change in details of an officer, for example, a change of name or new residential address.

Changes to the Company's share structure (Form 88(2))

Every time that the company allots shares it must inform Companies House of the allotment within one month of the allotment of shares.

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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