Removal of Charity Trustees
The removal of a charity trustee from a board or management committee is a significant governance step and is normally avoided where possible. However, in certain circumstances it may be necessary as a last resort, for example where there is misconduct, serious disagreement affecting governance, irreconcilable personality clashes, or a persistent failure to comply with trustee duties.
The removal of charity trustees is governed primarily by:
- the charity’s governing document (constitution, trust deed, or articles of association)
- the Charities and Trustee Investment (Scotland) Act 2005
- regulatory powers of the Office of the Scottish Charity Regulator (OSCR)
- other relevant legislation (e.g. Company law)
- relevant court powers
Trustee removal must always be carried out in accordance with the charity’s governing document and the relevant legal framework. Failure to follow the correct procedure can invalidate the removal and expose the charity to legal challenge.
Overview
Charity trustees in Scotland are the persons having general control and management of the administration of a charity. They must comply with statutory duties and act in the interests of the charity.
Trustees may be removed due to:
- misconduct or breach of trustee duties
- mismanagement of the charity
- incapacity or inability to perform the role
- automatic statutory disqualification
- loss of confidence by the appointing body, other trustees or membership
- persistent breach of the governing document
Removal mechanisms generally fall into three categories:
- Internal removal under the charity’s governing document
- Automatic removal or disqualification under legislation
- External removal by the regulator or the courts
Check the governing document
The first step when considering removal is to review the charity’s governing document (its constitution). Governing documents may contain provisions allowing trustees to be removed where they:
- breach their duties
- fail to attend meetings for a specified period
- become disqualified from acting as a trustee
- act against the interests of the charity
The governing document should specify:
- who has the authority to remove a trustee (board, members, or another body)
- the voting threshold required
- notice and procedural requirements
- appeal process
Removal by resolution of members
If the legal structure of the organisation is ‘two tier’ and therefore there is a membership which elects or appoints trustees, the governing document may allow trustees to be removed by the membership of the organisation through a resolution at a general meeting.
The governing document will usually specify:
- the notice period required
- the voting threshold (simple majority or special resolution)
- whether the trustee has the right to address the meeting etc.
Member-based removal is particularly common in two tier:
- unincorporated associations
- charitable companies
- SCIOs
Legal Forms of Scottish Charities and Trustee Removal
Scottish charities operate under a range of legal structures and the process for removing charity trustees varies depending on the structure adopted.
Charitable Trusts
Charitable trusts are governed by a trust deed and administered by trustees who hold assets for charitable purposes.
Trustees may be removed through:
- provisions in the trust deed allowing retirement or removal
- automatic removal following disqualification
- statutory removal where the deed is silent
- court order where a trustee refuses to resign and their continued involvement risks the charity
Unincorporated Associations
Removal mechanisms typically include:
- removal by members under the constitution
- automatic removal on statutory disqualification (charities only)
- regulatory intervention in cases of misconduct
- court action where internal mechanisms are ineffective
Unincorporated organisations pose a unique problem for organisations whose constitution is silent or inadequate on the matter of removal as there is no other statutory basis that provides for easy resolution. In the case of charities, charity trustees must always act in the best interests of the charity and this principle may guide decision-making in such situations. Trustees of unincorporated associations may be personally liable for the organisation’s obligations, which can increase the seriousness of disputes regarding removal.
Charitable Companies
Charitable companies are incorporated under company law and governed by articles of association. Charity trustees also serve as company directors.
Removal may occur through:
- provisions in the articles of association
- removal as a director under company law
- resolutions of members
- regulatory or court intervention
Company law may allow members to remove directors by ordinary resolution, subject to procedural safeguards.
Scottish Charitable Incorporated Organisations (SCIOs)
A Scottish Charitable Incorporated Organisation (SCIO) is a corporate legal form designed specifically for Scottish charities. SCIO trustees may be removed through:
- procedures in the SCIO constitution
- resolution of members (where the SCIO has a membership structure)
- automatic statutory disqualification
- regulatory intervention
SCIO constitutions are required by the SCIO Regulations 2011 to include provisions for the appointment and removal of charity trustees.
Regulatory Removal
OSCR has statutory powers to act where there is evidence of:
- misconduct
- mismanagement
- risk to charitable assets
Under the Charities and Trustee Investment (Scotland) Act 2005 and more recent amendments, OSCR may:
- direct a charity to remove a trustee
- suspend a trustee
- appoint interim trustees
- apply to the court for further remedies
These powers are normally exercised after the launch of a formal inquiry.
Court-Based Removal
The Court of Session may remove charity trustees where necessary to protect the charity.
Circumstances may include:
- serious breaches of trustee duties
- obstruction of the charity’s purposes
- governance deadlock
- refusal to step down despite clear governance risk
Court proceedings are usually a last resort after internal and regulatory options have been considered.
Automatic Disqualification
Scottish charity law has specific criteria for disqualifying individuals from serving as charity trustees in Scotland. Anyone acting as a charity trustee while disqualified is committing an offence, which could result in fines or imprisonment. You can find more details in OSCR’s most up to date guidance here. There is also a wiki page discussing disqualification here.
Procedural Safeguards
Trustee removal must be carried out fairly and lawfully, with several important procedural safeguards in place. These include ensuring compliance with the charity’s governing document, providing proper notice of meetings and any proposed resolutions, and giving the trustee a fair opportunity to respond to any allegations made against them. In addition, accurate minutes and records of the decision must be maintained. Failure to follow these procedures may invalidate the removal and could result in disputes.
Disputes and Challenges
Disputes over trustee removal may arise due to:
- unclear or outdated governing documents
- conflicts between trustees and members
- allegations of procedural unfairness
- disagreements over regulatory intervention
Resolution may involve:
Further resources and links
Charity Commission for England and Wales - Removing trustees from the board
OSCR note - Can a charity trustee be removed by the charity?
NCVO - Removing trustees
For further free, well-informed information, find your local Third Sector Interface (TSI) at the directory page here