One of the responsibilities of a firms board of directors is to _______.
The Companies Act 2006 imposes certain general duties on a director of a UK limited company. Our guide provides directors with an overview of these fundamental duties. Show
What is my role as a director?A company acts through two bodies of people – its shareholders and its board of directors. The board of directors are in charge of the management of the company’s business; they make the strategic and operational decisions of the company and are responsible for ensuring that the company meets its statutory obligations. Your role as an individual director is to participate in board meetings to enable the board to reach these decisions and make sure that the company’s obligations are fulfilled. The directors are effectively the agents of the company, appointed by the shareholders to manage its day-to-day affairs. The basic rule is that the directors should act together as a board but typically the board may also delegate certain powers to individual directors or to a committee of the board. You may also be a shareholder or an employee of the company (or both) and, if so, will have additional rights and duties going beyond those purely connected with your office as a director. It is crucial that you draw a distinction between these separate roles and 'wear the right hat for the job'. What are my general duties under the Companies Act 2006?As a director you must: 1. Act within powersYou must act in accordance with the company’s constitution, and only exercise your powers for the purposes for which they were given. The company’s constitution includes its articles of association and resolutions and agreements of a constitutional nature (e.g. shareholder or joint venture agreements). 2. Promote the success of the companyYou must act in the way you consider, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole. Success will generally mean a long-term increase in value but fundamentally it is up to each director to decide, in good faith, whether it is appropriate for the company to take a particular course of action. When considering what is most likely to promote the success of the company, the legislation states that a director must have regard to:
This list is not exhaustive but is designed to highlight areas of particular importance to responsible business behaviour. Other relevant factors should also be properly considered. 3. Exercise independent judgmentYou must exercise independent judgment and make your own decisions. This does not prevent you from acting in accordance with the company’s constitution or an agreement which the company has entered into. 4. Exercise reasonable care, skill and diligenceYou must exercise the same care, skill and diligence that would be exercised by a reasonably diligent person with:
The expected standard is measured against both objective and subjective yardsticks. A director’s actual understanding and abilities may not be enough if more could reasonably be expected of someone in his or her position. 5. Avoid conflicts of interest (a conflict situation)You must avoid a situation in which you have, or could have, an interest that conflicts, or may conflict, with the interests of the company. This applies in particular to the exploitation of any property, information or opportunity, regardless of whether the company could take advantage of it. This duty is not infringed if:
There is no convenient set of rules to determine which situations will or will not give rise (or potentially give rise) to a conflict of interest. The following are examples of arrangements which may potentially give rise to a conflict situation:
If you think you may be in a potential conflict situation you should: Seek approval – potentially a conflict situation can be approved by the other members of the board. If the board does not have the power to authorise conflicts or is otherwise unable to approve the conflict situation it could refer the matter to the shareholders for approval. Check the articles of association – the company’s articles might contain provisions relating to conflicts of interest, including:
Regulate your behaviour – even if a potential conflict situation has been authorised or is permitted by the articles of association you should still act appropriately, remembering your obligation to promote the success of the company. You must take care to act in accordance with the articles of association and any terms and conditions attached to the authorisation. 6. Not accept benefits from third partiesYou must not accept a benefit from a third party given because you are a director or because you do (or do not do) anything as a director. This duty is not infringed if your acceptance cannot reasonably be regarded as likely to give rise to a conflict of interest. 7. Declare interests in proposed or existing transactions or arrangements with the companyIf you are in any way, directly or indirectly, interested in a transaction or arrangement with the company, you must declare the nature and extent of that interest to the other directors. In the case of a proposed transaction you must do this before it is entered into. In the case of an existing transaction you must do this as soon as reasonably practicable. This duty is not infringed if:
Who do I owe my general duties to?Your general duties are owed to the company which you are a director of and not other group companies or individual shareholders. It is the company itself which can take enforcement action against a director if there has been a breach of duty. The decision to start proceedings against a director would be made by the board or, in an insolvency situation, a liquidator. In certain circumstances and subject to certain hurdles, an individual shareholder or group of shareholders can also bring a claim against a director for breach of duty on behalf of the company (known as a derivative action). What penalties are there if I breach my general duties?A breach of a general duty typically gives the company a number of potential remedies including an injunction, damages or compensation. Failure to disclose an interest in an existing transaction or arrangement with the company also carries the risk of a criminal fine. Is there any form of relief for a breach of the general duties?If a director finds he or she has acted in a way which breaches the general duties owed to the company the following help may be available:
Do I have any other responsibilities under the Companies Act 2006?The Companies Act 2006 imposes an array of other obligations on you as a director. Some are personal in nature and are specifically addressed to the directors. Others arise from the responsibility of the directors to ensure that the company carries out its obligations (where both the company and the directors may face liability in the event of a failure). Potential penalties depend on the specific obligation breached but typically involve a fine or rarely, for the most serious offences only, imprisonment. Probably the most significant are the duties of the directors relating to the preparation,
content, circulation and filing of the company’s annual reports and accounts where many of the obligations fall directly on the directors. What about other duties and obligations?Obligations are also imposed on you as a director from other sources beyond the main companies legislation. Some examples are:
What are my responsibilities on insolvency?Where a company is in financial difficulties the directors should seek independent advice as soon as possible if they are to avoid potential personal liability under insolvency legislation. The potential risks for a director in this area are complex and include the risk of being disqualified from holding the position of director or being involved in the promotion or management of a company for a period of up to 15 years. Some of the key issues for a director of a company which is insolvent or approaching insolvency are:
A director does not need to have been dishonest to be liable for wrongful trading and he or she cannot avoid responsibility by resigning from the company when potential difficulties are spotted. This is a particularly thorny area for directors to navigate and proper advice should always be sought.
COVID-19 has the potential to severely impact the financing of companies across all sectors. In our article ‘Governance and duties in the time of COVID-19’, we outline the key considerations and practical advice for directors to consider. Can the company indemnify or insure me against claims?A company may (but is not obliged to) indemnify you in respect of certain proceedings brought against you by third parties. An indemnity can potentially cover both the cost of the claim itself and the costs involved in defending it but never the following:
It is common for a company to take out directors’ and officers’ (D&O) insurance on behalf of its directors. Policy cover and terms vary but typically deal with directors’ liabilities arising from claims of negligence, breach of duty or other default. Standard policy exclusions include fraud, dishonesty and criminal behaviour but the directors should ensure they understand any limitations on cover and that insurance policies are kept under regular review. For more information, please contact our Corporate team. What is the responsibility of the board of directors?The board has a legal responsibility to provide oversight and accountability for the organization. They must ensure that all legal and ethical standards are followed and the organization is appropriately managing their assets and resources.
What is the role of the board of directors quizlet?Boards of directors are responsible for the governance of their companies. The shareholders' role in governance is to appoint the directors and the auditors and to satisfy themselves that an appropriate governance structure in place.
What are the two main functions of the board of directors?Their primary goal is to protect the assets of the shareholders by ensuring an organization's management acts on their behalf and that they get a good return on their investment (ROI) in the company. They do this by meeting regularly to create policies for overall company oversight and management.
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