We have all had to get used to virtual and – latterly – hybrid meetings over the last few years. But while these practices can start to feel familiar and easy, for some of us at least, there are important points to keep in mind.
These include technical legal requirements around how meetings are held, but also ‘softer’ and more practical issues, like the challenges of keeping governors involved in the life of the school, college or university, where the old levels of physical presence are much reduced or absent; and the importance, for the staff, of seeing the governors actively involved in this way.
In terms of the legal requirements, the formal relaxation of certain rules around company meetings, under the Corporate Insolvency and Governance Act 2020, is now a fading memory. The effect of the provisions was always time-limited, and has now passed. And in any event, not all educational organisations are companies.
For those that are charitable, there has been some additional comfort in the approach taken by the Charity Commission. During the pandemic, the Commission took a relaxed policy position regarding virtual and hybrid meetings. This meant that charities would – from the Commission’s viewpoint – be able to take advantage of remote meeting technology, regardless of whether their governing documents explicitly allowed it. However, as of 21 April 2022 the Commission has resumed business as usual on this, and all charities (including many schools and universities) should check their governing document to see whether remote or hybrid meetings are permitted and, if necessary, take action to amend their governing document to give them the administrative powers which they need.
Unless expressly prohibited in the organisation’s governing document, video meetings are generally considered (according to case-law) to be acceptable, provided that all participants can both see and hear one another (Byng v London Life Association). On the other hand, telephone meetings must usually be expressly permitted in the organisation’s governing document in order to be used (on the grounds that you cannot ‘see’ someone over the phone, as determined in 1989 when Byng was decided). But this will turn on the type of organisation yours is (for example, whether it’s a corporation or trust) and on what your governing documents actually say; the starting point is always to read those closely.
If your governing document does not permit remote or hybrid meetings, and the board agrees that this is something they wish to change, you’ll need to check the process for doing this. For registered charities, this type of change will generally not need Charity Commission approval. But there will still be particular processes to follow, which will vary for different types of organisation. In the meantime, it may also be worth considering whether a written resolution might suffice as a workaround (again, if and to the extent that that’s possible under your governing document).
And if your governing document already permits remote or hybrid meetings, it will be important to ensure that the rules are followed closely. This is, of course, not just for observing the requirements around the remote or hybrid nature of the meeting itself, but also the ‘business-as-usual’ provisions around things like quorum, notice and conflicts. These need to be observed whether a meeting is in-person, hybrid or virtual.
Apart from the legal requirements, there are of course broader questions around what really works for your school, your college, your institution. One of the challenges through the pandemic for our clients has been keeping people really involved and invested in the life of the organisation and its work, when they haven’t been able to come to the site for months or even years.
While the pandemic is moving on in terms of a general re-opening of society, at an individual level, things can look very different. Governors have medical needs and other sensitivities that can make it difficult to travel to meetings, particularly to sites in city or town centres that would likely require travelling by public transport. Deploying this argument, however, risks trampling on the sensitivities of the organisation’s staff; many of them may, not unreasonably, say that they are (and have been through much of the pandemic) on the ‘front line’ in terms of continuing to fulfil the organisation’s core functions. Should not the expectation be that governors will also engage? This applies not just to governors’ meetings, but also to all the other visits to the organisation which governors need to undertake to understand its heart and to support (and test) its operation – attendance at events, safeguarding visits, fundraising initiatives etc. Further, there is often quite a different quality to the debate at a governors’ meeting which is virtual or hybrid and that which is in person.
These can be difficult issues to manage and there is not always a ‘right’ answer. The key, as with many aspects of life post-pandemic, is to analyse what can work well in governance terms in a virtual or hybrid form, and where it really matters for the governors to be present. The view of the Head, Principal or CEO should be sought on this question. You may for instance decide that attendance at governors’ and committee meetings should always be in person (unless an individual has a very good reason why they must attend virtually, and always assuming the organisation’s IT equipment can cope with a hybrid meeting), but that virtual meetings can be very useful in facilitating quick catch up on other delegated functions – for instance working parties which may be overseeing building programmes or particular safeguarding concerns.
It is a balance, and the way each organisation decides to approach it will be for them to determine, so as to achieve informed and engaged participation and – through that – full and careful consideration of the relevant matters.
This will hopefully become easier over time but, for now, we recommend checking over your governing documents and thinking about whether they provide the flexibility you need, while providing a clear and robust framework for board business.
If you would like us to review your governing instrument to assess what you are able already to do, or how it needs to be updated, please contact us.