To suspend or not to suspend: is it even an option for charity trustees?

An issue which appears to be cropping up more regularly for charities is whether or not a charity trustee can be suspended. In this article, we consider the situations which might lead a charity or trustee to consider suspension, why the concept of suspension is problematic in respect of charity trustees, what issues might arise for “suspended” trustees and the charities they serve, what other options are available, and, lastly, whether there are any situations in which a trustee can be suspended. 

When might a trustee of a charity want to be suspended?

There are times when a charity trustee may need to take some time away from their role for caring responsibilities, for example when welcoming a new baby or adoptive child or when managing the care of elderly parents or relatives. A trustee might also need to step back if they are bereaved or suffering from ill health. Alternatively, a trustee may simply wish to indulge their wanderlust (whether as part of charity fundraising or otherwise) and have an extended time of leave to allow them to travel. In all such circumstances, the trustee may wish to retain their role as a charity trustee but merely “suspend” it for a limited period of time. 

When might a charity want to suspend a charity trustee?

The issue of suspension usually only arises for charities when a trustee faces allegations, for example of harassment or bullying, and the charity wishes to “suspend” the trustee whilst it carries out its investigations. A recent example of this was of an MP accused of sexual harassment in 2022. The charity of which the MP was a trustee noted that the MP had been suspended by their parliamentary party whilst investigations were ongoing and issued a statement that “we have followed [their] lead and suspended X as a trustee pending the result of the investigation”. 

What is the problem?

Whilst the question of suspension can arise in quite different contexts, the intention is always to allow the trustee to step back for a period of time whilst not removing them from office entirely. However, this misunderstands the role of a charity trustee. 

Firstly, whether or not someone is a charity trustee is a functional question. Charity trustees may be known by a variety of names (for example: directors, governors, board members or committee members) but their role is the same and defined in charity legislation as “having the general control and management of the administration of a charity”. In other words, irrespective of their title, the charity’s trustees are the individuals who are responsible for the overall control of the charity and for ensuring that the charity does what it is set up to do. Whether or not you are a charity trustee is determined by the responsibilities you have and the activities you undertake, not by your title. 

Secondly, one of the fundamental tenets of charity law is that charity trustees are volunteers, offering their time and expertise free of charge. Whilst it is possible for a charity trustee to also be employed by the charity, this is rare and only possible with appropriate authorisation. Even if a trustee is also an employee, their role as a charity trustee is distinct from the role they perform as an employee; the role of a charity trustee is not defined under an employment contract but under charity law. This is important, as suspension is an employment law concept. Since trustees are not employed, it does not make sense for them to be suspended. 

What issues arise for the trustee?

The position of charity trustee is a functional one: a person who is a charity trustee assumes the responsibilities of charity trusteeship by virtue of their role until such a time as they resign or are removed as a trustee. If a trustee is suspended but not removed, they may continue to satisfy the functional test of charity trusteeship and so the responsibilities of charity trusteeship continue regardless of their purported suspension. Alternatively, if they no longer satisfy the functional test of charity trusteeship, then they are no longer a charity trustee. There is no middle ground. It is impossible to suspend a person from the responsibilities and obligations of a role when occupation of the role is defined by the carrying out of those very responsibilities and obligations. 

Accordingly, any suspension is unlikely to be valid and the “suspended” charity trustee will most likely continue to be collectively responsible for the decisions made and actions taken by the other trustees without their involvement. This is particularly an issue for trustees of unincorporated charities who can find themselves at significant personal risk for decisions they have not been party to making. 

In addition, the suspended trustee is likely to be in breach of their fiduciary duties to act with reasonable skill and care (which requires giving thought, time and energy to the role), to act in the charity’s best interests (which requires challenging assumptions and engaging in decision-making), and to manage the charity’s resources appropriately (something they cannot do if they are not involved in any decisions). Whilst this is only likely to be an issue for the trustee where something has gone wrong and there has been an actual loss to the charity, there is a risk of regulatory action by the Charity Commission and of reputational damage to the charity. 

What issues arise for the charity?

Valid decision-making can be difficult to achieve if a trustee is suspended and it is not clear whether they are, in fact, still a charity trustee. For example, if the suspended trustee is still considered to be a charity trustee and is invited to participate in decisions, then those decisions may be invalid if the trustee was not, in fact, a charity trustee at the time. Alternatively, if the suspended trustee does retain the role of a charity trustee but is not included in the circulation of written resolutions, the resolution may not be passed with the requisite majority. 

In addition, the trustees are required, under the Charities Act 2011, to ensure that the charity’s register, including the details of the trustees, is kept up to date. If a charity trustee is suspended, but in fact has ceased to be a trustee, then their details should be removed from the register. Any failure to do so is a breach of the trustees’ obligations under the Act and risks reputational damage to the charity. 

Lastly, suspension is an employment law concept and employees who are suspended are usually suspended on full pay with their employment rights continuing during the period of their suspension. Suspension is a serious step, and an employer must have reasonable grounds for suspending an employee while they are under investigation. It should therefore only be used in serious cases of misconduct, where there is no appropriate alternative to dealing with the situation. If there aren’t reasonable grounds for the suspension, the employer may have breached the implied term of mutual trust and confidence. If a suspended trustee is eventually removed as a trustee, the charity could therefore find itself in receipt of a claim for unfair or wrongful dismissal having inadvertently introduced employment law principles into the role of charity trustee.

What other options are there?

If a trustee no longer wishes to (or cannot) comply with their fiduciary duties for an ongoing period of time, then the best course of action is for them to tender their resignation and cease to be a trustee. If they do not wish to do that, it may be possible for the trustee to take a more limited role for a short time, remaining in contact with the charity and the other trustees, receiving all relevant papers and involving themselves in all necessary decisions. However, this should not be for long and if there is any doubt that the trustee will be able to satisfy their fiduciary duties, then they should consider resignation. 

Are there any situations when a charity trustee CAN be suspended?

Yes! The Charity Commission may suspend a trustee after it has opened a statutory inquiry into the charity – clearly a very different situation to the ones described above

The Birketts view

In the Charity Commission’s guidance, a trustee’s circumstances changing in a way that stops them from continuing their role, “for example, they may become unwell”, is given as an example of when a trustee may choose to leave office. Furthermore, a trustee may be dismissed if they “lack engagement in board meetings”. This guidance reiterates our view that if a trustee is not fulfilling the role of charity trustee, then they cannot be considered to be a charity trustee (in the functional sense) and should resign or be removed. 

Whilst it may be uncomfortable, charities and trustees should grasp the nettle and discuss how best to manage a situation which limits a trustee’s involvement in the charity for a period of time. Undoubtedly the solution will be different in different contexts, but suspension of a charity trustee should never be considered a viable option. 

If you would like to discuss anything covered by this article or any other issue relating to your charity, please contact Nicola Morriss or another member of the Charities Team.