Blog by The Chartered Governance Institute UK & Ireland
Any charity board may at some point have a trustee who needs an extended period away, whether for maternity or parental leave, serious illness, bereavement or caring responsibilities. Boards generally handle these absences informally: colleagues cover their responsibilities and the minutes record them as on leave.
Those arrangements do not alter the trustee’s legal position. Our report, Governance in Absentia: managing leave from statutory office, published in July and led by Dr Valentina Dotto, explains why. Responsibility for a charity attaches to the office of trustee and continues whether or not the trustee is actively involved. A trustee who remains in office continues to be subject to the duties arising from their trusteeship. The precise legal framework and extent of liability will depend on the charity’s structure and governing document, but absence does not ordinarily remove the responsibilities attached to the role. Informal descriptions such as “non-participating” or “covered by others” have no legal effect.
Why trustees carry more risk than staff
An employed company secretary or executive director on maternity leave has employment law around them. It governs the absence, protects the job and provides a route back. Their duties of office continue, but the organisation has a structure to work with.
Most trustees are not employees of their charity. No employment-based framework governs their absence, cover or return, and their legal responsibility continues uninterrupted. The report identifies non-employed trustees as a particularly high-risk category because they generally have no employment-based framework for managing absence, cover and return.
The pressure is greatest in smaller charities. Few have a governance team or succession arrangements to draw on, so when a trustee faces a long absence, stepping down can appear to be the only option.
Two common misconceptions
- Some trustees believe they can cover an absence by delegating their functions by power of attorney under section 25 of the Trustee Act 1925. That provision keeps the delegating trustee liable for the acts and defaults of the attorney. It delegates administrative power and does not transfer fiduciary responsibility. Our report recommends that the Charity Commission make this explicit in its guidance.
- Informal contact also carries its own risk. Responding to WhatsApp messages about a pending decision, giving informal instructions or indicating how they would vote may blur the boundary between absence and active participation, potentially increasing the officeholder’s legal or regulatory exposure.
What boards can do now
Extended leave remains possible, provided the arrangements are formal and, ideally, agreed before the leave begins. Our guidance suggests boards:
- check whether the governing document allows a temporary leave of absence without creating a vacancy, and whether extra trustees can be co-opted
- record in the minutes, or by written resolution, how the absent trustee’s functions are redistributed among committees or fellow trustees
- recalculate quorum ahead of each meeting so decisions remain valid
- agree before leave begins what updates, if any, the trustee wants; the report suggests limiting these to strategy, material financial changes and serious risks
- obtain written confirmation that any directors’ and officers’ or trustee indemnity insurance remains effective throughout the absence and covers relevant omissions as well as active decisions
- on return, brief the trustee on decisions taken in their absence and restore their previous committee and chair roles, subject to any term limits
None of these steps suspends or transfers a trustee’s legal responsibility under the current framework. A clear record may help demonstrate that the board considered the risk and maintained oversight, and supports the validity of decisions taken while the trustee is away.
A longer-term fix
Germany now allows company management board members to suspend their mandate for maternity, parental leave, serious illness or caring, with the suspension recorded on the commercial register. The report proposes that the Charity Commission publish model constitutional clauses enabling charities to formalise trustee leave, and that policymakers consider whether charity and company law should give trustees and directors more certainty.
Join the conversation
Extended leave is part of a wider question about who is able to serve as a trustee and what helps them stay. The report links clear absence arrangements to board diversity and retention. These themes run through the excellent programme of webinars at Eastside People’s Festival of Trusteeship, which CGIUKI is pleased to support.
