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Adding and removing a company secretary

The processes for the adding or removing of a company secretary vary depending on the type of company. This article explains how and why you might add or remove a company secretary as an officer of your company.

What is a company secretary?

Although the role of a company secretary is not prescriptively set out in any statue, a company secretary will often be an officer of the company that deals with and leads the administration and governance work involved with the running of a company.

Company secretaries usually provide guidance to the board of directors of the company and will liaise with the board and its stakeholders and shareholders on various corporate governance matters. This is increasingly seen to be an important role in the organisation of a company, as companies and directors are under more scrutiny and pressure to put meaningful corporate governance models in place.

As the specific role of a company secretary is not set out in any detail in legislation, each company can decide to what extent it wants the role of its company secretary to be a key role in the organisational structure. The role of a company secretary will also vary depending on the size of the company and whether the company is a private or public company listed on a regulated exchange.

In England and Wales, a company secretary is a statutory officer of a company that is governed by the Companies Act 2006. This means that a company secretary has legal obligations and can be held legally responsible if it or the company does not fulfil these obligations, which could mean that in some circumstances a company secretary may be fined.

Company secretaries can be people or companies, and there are a number of companies in the market that provide company secretarial services for companies that do not have a suitable candidate but that would like to have the function available. Statutory law says that a company must keep a register of its secretaries and that this register must be publicly available for inspection.

Reasons to appoint a company secretary

The reasons for a company wanting to appoint a company secretary will largely depend on the nature of the company and the circumstances surrounding its purpose, values, size and financial standing. In some circumstances, listed below, a company must appoint a company secretary:

  • The company has a statutory obligation to - Part 12 of the Companies Act 2006 says that a private company is not required to have secretary and that anything that would be expected to be addressed to or carried out by a secretary may be done or addressed to the company itself or a director.

    It is worth noting, however, that if a private company chooses not to have a company secretary, it will still need someone to carry out the tasks usually undertaken by the company secretary. This rule is useful for small companies (for example companies that only have one director and one shareholder) as it avoids having to appoint another person to a position of responsibility when it is not required.

    On the other hand, public companies are explicitly required to have a company secretary by law, and if they do not have one, the Secretary of State can order them to appoint one, otherwise the company and its directors may be fined. If a public company fails to appoint a secretary, the Secretary of State has power to give a direction specifying a period (of between one and three months from the date of the direction) in which the company must appoint a secretary. Failure to comply with such direction is an offence by the company and every officer of the company who is in default, including any shadow directors.

    The auditors of a company cannot also be appointed as the company secretary.
  • The company’s articles of association require it - A private company may have articles of association which expressly require a secretary to be appointed to the company. If this is the case, by law the company must continue to have a secretary unless it changes its articles.

Restrictions on who can be appointed as a company secretary

Under the Companies Act 2006, the directors of a public company have a duty to make sure that the company secretary of a public company (or joint secretary if more than one are being appointed) is a person who (a) appears to them to have the necessary knowledge and experience to carry out the functions of a company secretary and (b) has one or more of the following qualifications:

  • They have been a company secretary of a public company for at least three of the five years immediately before being appointed as secretary in the current role;
  • They are a member of one of: the Institute of Chartered Accountants in England and Wales; or the Institute of Chartered Accountants of Scotland; or the Association of Chartered Certified Accountants; or the Institute of Chartered Accountants in Ireland; or the Institute of Chartered Secretaries and Administrators; or the Chartered Institute of Management Accountants; or the Chartered Institute of Public Finance and Accountancy;
  • They are a barrister, advocate or solicitor called or admitted in any part of the United Kingdom; or
  • They are a person who, because they have held another position or are a member of any other body, appear to the directors to be capable of carry out the functions of a company secretary.

In contrast, a private company has no restrictions placed upon it when choosing its company secretary and the nominated person does not need any formal qualifications.

How to appoint a company secretary

There is no legislation that provides a mandatory process to specify how a company secretary should be appointed, but it is common practice for the appointment of the company secretary to be decided upon at a meeting of the directors of the company.

Can a sole director also be a company secretary?

Yes, in theory, but the benefits of a sole director of a private company also appointing itself as a company secretary are unclear, and in fact the double appointment may end up being obstructive to the running of the company. The Companies Act 2006 states that if a provision requires or authorises something to be done by or to a director and the secretary of a company it will not be satisfied by it being done by or to the same person acting in both capacities.

Reasons why you may need to remove a company secretary

The reasons for a company needing to remove a company secretary will largely depend on the facts and circumstances surrounding the operation and governance of the company and the company’s sustainability, strategy and purpose.

A company would need to remove a company secretary where they were inadequately performing their role, as this could have a detrimental impact on the company and cost it money. For example, if the company secretary is responsible for meeting the statutory filing obligations of the company (such as filing resolutions, accounts and reports or changes to registers) and fails to do so then in many cases the company and its officers could be convicted and fined.

How to remove a company secretary

The default position is that directors of a company can remove a company secretary and end their appointment by passing and approving a board resolution to do so without needing any shareholder consultation or approval. The articles of association of a company may specify something different, so it’s important to check that there are not additional requirements in place, otherwise the removal may not be valid if the proper process is not observed.

If the removal of a company secretary means that the position needs to be filled – as will be the case in public companies and companies where the articles of association specify that a company must have a secretary – any person authorised by the directors can act in place of the company secretary whilst recruiting the position.

Appointing and removing a company secretary in a private or limited company

The Companies Act 2006 does not set out any specific process for appointing or removing a company secretary, but the first step to any appointment or removal is to check the company’s articles of association to see if they set out any requirements that the board of directors must follow. A good corporate governance practice would be to ensure that the appointment or removal of a company secretary has been agreed to and approved by the board, and the reasons for and the results of the decision should be documented in the minutes of the board meeting.

Adding and removing a company secretary in a public company

Similarly, for public companies there is no mandatory statutory process for the appointment or removal of a company secretary. The company’s articles of association should be consulted before proceeding with the appointment or removal. Some public companies have to comply with certain corporate governance codes that provide more requirements for appointment or removal. For example, companies with a premium listing on the official list of companies permitted to trade on a UK regulated stock exchange for financial years beginning on or after 1 January 2019, the 2018 UK Corporate Governance Code also states that both the appointment and removal of the company secretary should be a matter for the board as a whole.

Can you remove yourself as a company secretary?

In short, yes you can. A company secretary’s resignation is not subject to board approval, unless otherwise stated in a company’s articles of association. The company secretary simply has to send and deliver a letter of resignation to the company.

The role of directors in adding and removing a company secretary

The directors of a company play a pivotal role in appointing and removing a company secretary, as they have the main responsibility for recruiting the candidate, monitoring their performance (often in accordance with corporate governance codes and industry body standards) and they are accountable for ultimately deciding whether the secretary’s continued position in the company promotes the best interests of the company. It will ultimately be the directors that make the decision to appoint or remove a company secretary. Their decision will be documented in the company’s records and must be reasonable and justifiable to stakeholders and the company’s shareholders.

Filing with Companies House when adding and removing a company secretary

When a company is adding and removing a company secretary, it needs to notify the registrar of companies within 14 days from the date that the person is appointed as company secretary. The company will need to make sure that the person being appointed has consented to act in the role. Similarly, when removing a company secretary, a company also needs to notify the registrar within 14 days from the date that the person is removed as company secretary. A company must also give the registrar notice within 14 days if any of the details contained in the register of secretaries are changed.

These requirements are legal obligations and if the company fails to comply with them, the company and its officers (directors and company secretary) could incur fines.

What next?

If you would like advice on how to add or remove a company secretary, or if you would like to discuss your corporate structure with a legal professional, our expert solicitors can help. Get in touch by filling out the form below or calling us on 0800 689 1700.

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