What are the implications of the coronavirus (COVID-19) restrictions for directors’ board meetings?

What are the implications of the coronavirus (COVID-19) restrictions for directors’ board meetings?

Unlike company general meetings and annual general meetings, there are no provisions in the Companies Act 2006  regulating board meetings or prescribing who can call a board meeting or any notice period that has to be given to directors when convening a board meeting. Instead, the procedure for calling and conducting board meetings is usually set out in the articles.

For comprehensive information on the convening and holding of board meetings under normal circumstances see Practice Notes:

• Directors’ board meetings—fundamentals

• Directors’ decision-making—convening board meetings

• Directors’ decision-making—conduct at board meetings

• Directors’ decision-making—written resolutions and decisions by sole directors

On 26 March 2020, compulsory measures (the 'Stay at Home Measures') prohibiting, among other things, public gatherings of more than two people were passed into law in England and Wales, with immediate effect, in statutory instruments (SI 2020/350 in England and SI 2020/353 in Wales) made pursuant to the Public Health (Control of Disease) Act 1984.

These measures clearly limit the ability of the directors of certain companies to hold board meetings in physical form. However for most companies, particularly private ones, directors are well used to convening and conducting board meetings with a significant degree of flexibility and freedom. The key is to ensure that the meeting, in whatever form it takes place, is quorate and effective.

On 30 March 2020 the Chartered Governance Institute issued guidance (CGI Guidance) giving a brief overview of the legal and practical issues for virtual board and committee meetings in an attempt to help companies struggling with the impact of the coronavirus (COVID-19) outbreak. The guidance sets out the key points that companies should keep in mind so that they ‘can use virtual meetings to good effect while the ban on public meetings is in place to prevent the spread of coronavirus’.

The guidance includes the following advice:

• the choice of the right communication channel is vital

• virtual meetings need to be well structured and avoid unnecessary complexity

• ensure all necessary preparations for the meeting are in place

• the chair will need additional techniques to run an orderly meeting

• ground rules for participants should be circulated to all those joining the meeting

• clear instructions on accessing the meeting system or app are essential

• good boardroom practices are even more necessary than for face-to-face meetings

The CGI Guidance offers practical insights on holding effective remote board meetings including in relation to setting up and hosting the meeting, dealing with papers and the role of the Chair.

The CGI Guidance also offers some advice on ‘alternatives to meetings’ including written resolutions, ‘email meetings’, delegation to a committee and ‘subsequent ratification’ (see also Practice Note: Directors’ decision-making—written resolutions and decisions by sole directors).

Separately, in relation to the holding of general meetings and AGMs during the coronavirus (COVID-19) crisis see Coronavirus (COVID-19)—holding general meetings and AGMs and our Coronavirus (COVID-19)—AGM tracker.

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