Naomi Ireson’s legal guide to removing a trustee of a charity
Removing a trustee of a charity is both a highly sensitive process, and a legally regulated one.
The starting point should always be a review the charity’s governing documents, such as the constitution, the deed of trust, or the Articles of Association.
Check these documents for any clauses related to the removal of trustees. They may outline the procedure to be followed, such as who can initiate the removal, the required notices, and any voting procedures.
If the charity is a company, then a director can be removed if the correct procedures are followed.
It is also important to consider Charity Commission guidance on trustee removal.
There must be good reasons to remove a trustee. Grounds upon which it may be possible to remove a trustee include:
Breach of Duty
Has the trustee failed to comply with their legal or fiduciary duties? Issues such as the mismanagement of charitable funds and acting in conflict of interest may be grounds for removal of a trustee.
Ineligibility to continue acting
Has the trustee become ineligible to serve due to a criminal conviction, bankruptcy, or being disqualified by the Charity Commission?
Incapacity
Has the trustee become incapable of carrying out their role in the charity due to illness or another incapacity?
Conduct
Has the trustee’s conduct made it impossible for them to continue acting? Misconduct, poor attendance, failing to act in the charity’s best interests, and damaging the charity’s reputation may all be grounds for removal.
Once a decision has been taken and the charity is satisfied that there are grounds for removal then the procedures set out in the governing documents should be carefully followed.
In the first instance the charity may wish to raise the issue with the trustee informally to ascertain whether they would be willing to step down voluntarily. You can also consider holding a vote of no confidence. Mediation may also be an option.
If the trustee is not prepared to depart voluntarily then a board meeting or general meeting will normally be called in accordance with the procedures in the governing documents. It is important to ensure that proper notice is given, and the issue of removal is clearly stated on the agenda.
Consider the charity’s rules on voting and whether a simple majority is required, or some other threshold such as a two-thirds majority.
Once the decision is taken it should be documented in the minutes and the trustee should be given formal written notice of their removal.
Consider also the need to inform the Charity Commission of the change in trusteeship and update any records.
Bear in mind that if the departing trustee is named as a trustee of land or property then the legal title will need to be updated. Land and property should always be held by at least two trustees.
Because removing a trustee of a charity is so sensitive and fraught with legal and compliance considerations it is advisable to seek professional legal guidance from a solicitor.
