Trustees, Charity Staff and Automatic Disqualification: Changing Rules
The Charity Commission have for some time restricted charities from appointing trustees that have an unspent conviction relating to dishonesty or deception. In 2018, the Commission has now published new guidance (The Charities (Protection and Social Investment) Act 2016) extending the rules of automatic disqualification. The extension applies in two ways; to senior managers and beyond that including more circumstances that disqualify people from roles.
Who was banned already?
Automatic disqualification has applied to anyone who holds an unspent conviction for dishonesty or deception, or the aiding and abetting of these offences, has been prevented from being a trustee. This has not prevented charities from employing people with such unspent convictions, indeed, individuals may have held important and influential internal roles in charities.
A conviction remains unspent for a period of time determined by the seriousness of the offence and the length of sentence given.
Furthermore, other individuals might find themselves automatically disqualified from being a trustee if they are currently in a state of bankruptcy, subject to debt relief orders or are also disqualified from being a company director. Naturally those individuals that the Charity Commission had previously removed as a result of misconduct also found themselves automatically disqualified.
The Extension of Automatic Disqualification in Charities
The extension of the existing rules comes into force from 1st August 2018. The extension is on two fronts;
- The roles effected which now include CEOs and Finance Directors in addition to trustees
- The criteria for automatic disqualification.
The expansion of the criteria will see a new raft of individuals automatically disqualified. These include people with unspent convictions for bribery, terrorism, money laundering, misconduct in public office, perjury, and being on the sex offenders register.
What should an Employee do?
If an individual who previously was not disqualified now cannot meet the new criteria then they have the ability to apply for a waiver. This waiver opportunity window opened on 1st February 2018 and the Commission are advising individuals to apply at their earliest opportunity using this form.
Of course, the Charity Commission will not automatically grant waivers to all those that apply. In short, an assessment will be made of how much risk the individual poses. This might involve consideration for the type of conduct that led to the disqualification factor, the importance of the individuals role within the charity and the purpose of the charity itself.
This last factor might be very important for charities that work in the space of specific issues or in rehabilitating offenders. Indeed, on a wider note, playing an important role in a non profit organisation might be a significantly positive aspect of the rehabilitation for an individual. The risk to a charity has to be balanced with the value an individual brings and the way in which a charity manages this risk.
Unlock, the charity that provides a voice and support for people with convictions are keen to hear from people who are subject to these new changes and have provided this feedback form.
What should a Charity consider?
With the expansion in criteria, it would be sensible for all charities to check and record whether any existing staff or trustees are impacted by these changes. If there are individuals that know they will be within the new criteria, the charity has to choose whether to apply for the relevant waiver.
This should also form a part of the recruitment programme for trustees and senior managers too and so relevant procedures in this space should also be updated. These would include the processes that apply to recruitment prior to individuals being offered jobs or posts. There is an insolvency register, a register for disqualified directors kept by Companies House and the Charity Commission keep a register of those removed as a trustee previously.