Company Secretary Update (1)

Not quite as exciting as Brexit, but perhaps a welcome distraction! This quarter, the key highlights are:

Register of Persons with Significant Control (PSC Register)

UK Companies and LLPs have been required to prepare and maintain a PSC Register since 6 April 2016. If you haven’t prepared yours yet, then our April briefing may help. Your PSC Register will need to be filed with the ‘confirmation statement’ which replaced the annual return from 30 June 2016.

When filing the new confirmation statement, companies will be required to include information from their PSC Register in addition to:

• details of any change of registered office;
• details of company registers relating to directors, company secretaries (if appropriate) and the new PSC register;
• details of where a company keeps its records if they aren’t kept at its registered office;
• notice of any change in the company’s business activities;
• a statement of capital (if applicable), unless there has been no change since the last statement of capital was delivered;
• a statement as to whether any of its shares were admitted to trading; and
• information in relation to shareholders, unless there has been no change since the information was last delivered (to include the name of each shareholder, the number of shares of each class held, the number of shares of each class transferred and the dates of registration of those transfers).

Gender Pay Reporting

Gender pay reporting was implemented in 2010, on a voluntary basis, as part of the ‘Think, Act, Report’ scheme. However, mandatory reporting is expected to be required from 1 October 2016 and will require employers with at least 250 employees to publish details of overall gender pay gap figures, as well as the number of men and women in each of four pay bands and information relating to gender bonus gaps.

The requirements will not apply to public sector employers initially, so they won’t catch local authorities or schools maintained by the local authority, for example. However, they are likely to catch housing associations, care providers, charities and multi-academy trusts with a number of schools (a full list of excluded employers is here). These requirements are also likely to be extended to the public sector in due course. It is expected that the first reports will need to be published in April 2018.

Modern Slavery

Many of our clients are working on their Modern Slavery Statement at the moment – see our detailed briefing for help with yours. We also have a toolkit prepared to help with the process – it includes:

• Standard modern slavery and human trafficking statement
• Checklist to help RPs prepare the annual statement and assess risk in the supply chain
• Anti-slavery and human trafficking policy
• Board minutes to approve the statement
•  Due diligence question for inclusion in PQQs/selection questions
• Anti-slavery and human trafficking clauses to put in supply chain agreements

Please get in touch with us if you’d like to find out more.

Charity Data Sharing

In September last year the Information Commissioner announced that his office was launching an investigation into data sharing in the charity sector, following the press reports that a charity sold the personal details of a dementia sufferer.

In January, the Public Administration and Constitutional Affairs Committee published a critical report on their investigation into charity fundraising, reserving particular criticism for trustees.  The fundamental concern, underlying the 2015 fundraising controversy, was whether the charities concerned were using personal data in a way that was legal, ethical and consistent with their stated values. The report states that charities need to have a robust and effective governance structure to ensure that the trustees can have confidence in the ethics and methods of the fundraising that is carried out on their behalf.

Trustees need to make sure that they are aware of the law surrounding data sharing and understand what their duties are. New Data Protection law is on the horizon within the EU (General Data Protection Regulation – “GDPR”) – our Jane Burns summarises the main points here. It is likely that this will come into force in May 2018, albeit potentially for a very short time whilst the UK negotiates its exit from the EU. The UK will then need to decide whether to update the provisions of the Data Protection Act, or to adopt the GDPR into UK law.

Spotlight

Registered charities: to convert or not to convert?

Until the Housing and Planning Act 2016 (the “Act”), the impact of direct regulation by the Charity Commission was seen by many RPs as largely an additional body to which to report; the HCA took on the majority of the regulatory burden and liaison with the Commission was limited to trigger events, such as proposals to start remunerating Board members.

However, as a result of the provisions in the Act removing the disposals consent regime, we are speaking to many of our registered charity RP clients about the impact of Charity Commission regulation on their ability to realise the full benefits of these new ‘asset freedoms’. In particular, the Charities Act 2011 requires registered charities to take additional steps when disposing of assets otherwise than in pursuance of their charitable objects. This may particularly impact on groups that are looking at disposing of assets to commercial entities in the group – or perhaps more widely as part of a strategy to streamline their asset base.

One potential solution is to convert from a company registered with the Charity Commission to a community benefit society exempt charity, using the statutory conversion process in section 115 of the Co-operative and Community Benefit Societies Act 2016. Changing status in this way is not straightforward and it would be a significant step for an RP. The advantages and disadvantages must therefore be weighed carefully – relevant issues include:

• benefitting from ‘decreased’ regulation, because you would be regulated as an exempt charity – but the risk that exempt charities become regulated by the Charity Commission in the future (although they still wouldn’t be required to comply with the disposals requirements in the Charities Act 2011 in the same way that registered charities must);
• the conversion process itself – including whether your funders would require a release and recharge of all of your assets as part of the conversion process; and
• how the conversion would look to stakeholders / the public who more readily recognise registered charitable status.

We have assessed the pros and cons of conversion for a variety of governance structures and scenarios, so if this is something you’re considering we’d be delighted to discuss this in further detail with you.

Please get in touch with Sarah Greenhalgh if you would like any assistance.

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