In maintained schools governors cannot make decisions by email. It is not allowed under the law.
In academy trusts the trustees can pass written resolutions under the model articles of association, which could be passed by email. Written resolutions of trustees must be unanimous.
The model articles also allow academy trust members to pass written resolutions. Written resolutions of members do not need to be unanimous. Whether local governors can pass written resolutions will depend on rules set by your own trust.
Decisions By Email Banned In Maintained Schools
The law for maintained schools says that decisions are made by a majority of the votes of governors present at a meeting.
“Every question to be decided at a meeting of the governing body is to be determined by a majority of the votes of the governors present and voting on the question.”
Roles, Procedures and Allowances (England) Regulations 2013
DfE advice on this law explains that governors are not able to vote in advance of a meeting because they must be present to vote. So voting by email, proxy voting or any method of voting outside of meetings is not possible.
“Members of the board and its committees must be present in a meeting to vote, but they may be present ‘virtually’.
“The requirement to be present at the meeting means that proxy voting or voting in advance of a meeting is not permitted.
“It is important that governors are present to hear and engage in the debate before casting their vote.”
The School Governance (Roles, Procedures and Allowances) (England) Regulations 2013 Departmental Advice
The DfE says that maintained school governors are not allowed to take decisions by email because new information may be heard at the meeting and the discussion could change a governor’s point of view.
If a governor is not present to hear that discussion, either in person or virtually, they would be casting an ill-informed vote.
This means that maintained school governors cannot make any decisions via email. They cannot approve policies by email. They can’t approve the budget by email. They can’t appoint new governors by email. And they can’t take any other board or committee decision by email.
If a quick decision needs to be made in a maintained school then an extraordinary meeting can be called. In serious situations the chair may be able to use chair’s action. Governors can attend and vote virtually, as long as they are attending in real time.
Some governors I have worked with over the years have been very eager (!) to make decisions by email, so I have also checked this rule with the DfE Governance Team directly and the National Governance Association (NGA).
The DfE confirmed that decision-making by email is not possible, telling me that voting must take place during the meeting.
“We have examined the legislation: Roles, Procedures and Allowances (England) Regulations 2013 and the related guidance and we are clear that the department’s position is that voting must take place during the meeting.”
DfE Governance Team
The NGA agreed. The NGA Head of Advice explained that voting must take place “in the present” and cannot occur before or after the meeting.
“Our interpretation of the Roles, Procedures and Allowances 2013 Regulations is that the governor must be present.
“They do not have to be physically present as regulations also contain the possibility for the governing board to approve alternative arrangements for governors to participate or vote at meetings including, but not limited to telephone or video conference.
“However, our interpretation is that governors must be voting ‘in the present’, either whilst being physically present at the meeting or by joining via telephone or video conference.
“Although it is possible for academy trust boards to make decisions via written resolutions, the same option is not available to maintained school governing boards.”
Head of Advice, National Governance Association
Decisions By Email In Academy Trusts
To find the exact rules in your academy trust check your articles of association (for the board of trustees) or terms of reference (for local governing bodies).
The information below is based on the current DfE model articles of association (June 2021). I also have a separate article on written resolutions in academies, including some example text that can be used when drafting written resolutions.
Academy Trustees Can Make Unanimous Decisions By Email
The model articles of association allow academy trustees to pass written resolutions, including resolutions in “electronic form”, for both the board of trustees and committees of trustees.
Note that a written resolution of trustees must be signed by “all the trustees” who are entitled to vote on that issue. So if trustees want to make a decision by email it must be a unanimous decision.
“A resolution in writing, which includes a resolution in electronic form, signed by all the trustees entitled to receive notice of and vote at a meeting of trustees or of a committee of trustees, shall be valid and effective as if it had been passed at a meeting of trustees or (as the case may be) a committee of trustees duly convened and held.”
Model Articles of Association (June 2021)
Academy Members Can Make Decisions By Email
The model articles allow academy members to pass written resolutions, including by “electronic form” which could include by email.
Unlike written resolutions of trustees, written resolutions of members do not have to be unanimous. They just need to be passed by the same margin as they would if the vote took place at a members’ meeting.
So if members take decisions by email they either need to be passed by majority (for ordinary resolutions) or by 75% (for special resolutions).
“A resolution in writing, which includes a resolution in electronic form, agreed by such number of members as required if it had been proposed at a general meeting shall be as effectual as if it had been passed at a general meeting duly convened and held provided that a copy of the proposed resolution has been sent to every member.”
Model Articles of Association (June 2021)
Local Governors Might Be Able To Make Decisions By Email
The powers of local governors are set by your own trust in the terms of reference for the local governing body. Check the terms of reference to see whether your local governors are allowed to make decisions by written resolution.