Can students' unions still hold remote AGMs in a post-lockdown world?
The COVID-19 pandemic, and the resulting lockdowns, social distancing and self-isolation rules, had an impact on nearly every aspect of our daily lives. One thing made particularly difficult during this time was meeting face to face, which affected us as individuals but also had implications for all types of organisations, with students' unions no exception.
From June 2020, the government brought in temporary legislation (the Corporate Insolvency and Governance Act 2020 (‘CIGA')) which enabled SUs that are companies to hold meetings remotely, even where their governing document did not allow this, in an attempt to help slow the spread of COVID-19. The Charity Commission also provided guidance to say that it would take a flexible and pragmatic approach to meetings held outside the terms of a charity's constitution.
However, in line with the easing of other Covid related restrictions, the CIGA provisions relating to remote meetings expired on 30 March 2021 and the Commission's more flexible approach to remote meetings ended on 21 April 2022.
Our AGM is coming up and we want to hold it remotely, what now?
SUs, and other charities, must now make sure they comply with the terms of their governing document in relation to holding remote meetings.
The first step is to check your governing document. Many governing documents include an explicit power to hold members' meetings remotely (e.g. by video or telephone conference). If your constitution does include an explicit power enabling you to hold virtual meetings of the members, you must make sure that you also comply with the provisions related to giving notice, quorum and voting.
If you don't have the power to hold virtual meetings and decide that it would be in the best interest of the SU to postpone, adjourn or cancel your AGM for any reason, you will need to ensure that you follow any specific rules set out in your constitution and carefully document the reasons for doing so.
If there is no explicit power in the constitution to hold virtual meetings of the members and you do not want to (or cannot) postpone, cancel or adjourn the meeting, you may want to consider amending the governing document to give the required flexibility going forward. It is important to remember that the provisions in the governing document around making amendments must be complied with, which may involve meeting in person to agree the changes.
Please note that there is a question mark over whether (now that the CIGA provisions have finished) a company is permitted to hold a fully virtual members' meeting or whether a physical “place” is always required. There are differing views on whether a fully virtual company members' meeting is valid and, if it is valid, on what is required e.g. in terms of proving that the technology worked correctly throughout the whole meeting. The cautious approach is therefore either to continue to hold company members' meetings at a physical place or to amend the company's articles of association to permit the holding of hybrid meetings where some people attend physically and others virtually. We appreciate that this may be frustrating at a time when university lectures are increasingly online and when AGM attendance can be a challenge for some. We have asked the Law Commission to look at amending the law in this area to make the CIGA provisions permanent and await their response, but it may take years for the law to catch up with technological changes in this area.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
