Yes. Governing bodies at both maintained schools and academies can continue to hold meetings and take decisions even if they have ongoing vacancies.
In maintained schools there is no legal minimum number of governors you must have in post, but you must have a minimum of seven governors in the board’s constitution.
In academies your articles of association may say that if the number of trustees in post falls below a quorum those trustees can only make limited decisions. However, articles should also say that in all other circumstances the board can function normally with vacancies.
There are provisions in the rules (explained below) that allow boards to function with vacancies. However, it is not good practice to have too many vacancies because it puts pressure on your remaining governors.
This page explains the rules and suggests when vacancies may become a concern.
Law For Maintained Schools
Each maintained school must have a minimum of seven governors in its constitution. This number is set by law. You can see how many governors are in your constitution by checking the instrument of government.
The constitution of a governing body means the number of governor roles on your school board, which may be different to the number of volunteers you actually have in post.
“The total membership of the governing body of a maintained school must be no fewer than seven governors.”
Constitution Regulations (England) 2012
Although boards must have at least seven governors in their constitution, the law says that governing bodies can still function if they are not full and do not become valid because of “any vacancy”. This means there is no minimum number of governors that schools must legally have in post.
“The proceedings of the governing body of a school are not invalidated by any vacancy among their number.”
Roles, Procedures and Allowances Regulations (England) 2013
Say for example a school has seven governor roles in its constitution but one of these roles is not filled, which leaves only six governors in post.
These six governors are able to carry on attending meetings and making decisions if they are quorate, so for full governing body meetings they would need three governors in attendance for a quorum.
Rules for Academies
Check your own articles to be sure, but the current model articles of association for academies (June 2021) state that trustees are able to act even if there are vacancies on the trust board.
However, they also say that if the number of trustees in post is less than the number needed for a quorum then the trustees can only make decisions on two issues: filling the trustee vacancies or calling a general meeting (a meeting of academy members).
“The trustees may act notwithstanding any vacancies in their number, but, if the numbers of trustees is less than the number fixed as the quorum, the continuing trustees may act only for the purpose of filling vacancies or of calling a general meeting.”
Model Articles of Association (June 2021)
The quorum in model articles is either three trustees or one-third of trustees in post (rounded up), whichever number is greater.
So if an academy trust board has enough trustees in post to form a quorum it can function as normal. If there are two trustees in post or fewer they can only fill vacancies or call a general meeting.
If it is a committee such as a local governing body the rules will be set by that committee’s terms of reference.
When should we worry about governor vacancies?
As shown above the rules allow governing bodies to function with very small numbers of people, but a tiny board is not good practice for a number of reasons.
Firstly, a handful of people cannot take on all the responsibility of the governing body without strain.
It will be difficult to assign link roles and form committees or panels and the board may struggle to elect a chair and vice-chair. It may even struggle to find a free governor to meet OFSTED during an inspection.
The balance of stakeholders on the board would be another concern. If for example you have only five governors and the headteacher governor and staff governor are in post, it would only need a few other governors to send apologies for a meeting to effectively become a staff meeting rather than a meeting of the board.
Aiming for a minimum of around eight or nine governors/trustees in post might be a good rule of thumb. In reality most boards are larger than this, allowing a few governors to resign without putting too much pressure on those left.
A survey by the National Governance Association found that in 2019 the average board contained 11 to 12 governors when full, with only 16.7% of schools having eight governors or fewer in their constitution. Mind you, 2.8% of schools had 20 governors or more! Here are the full survey results.
Size Of School Boards When All Vacancies Filled
Boards with with eight governors or fewer: 16.7% of schools
Boards with 9-10 governors: 23.1%
Boards with 11-12 governors: 31.9%
Boards with 13-15 governors: 19.2%
Boards with 16-19 governors: 6.2%
Boards with 20 governors or more: 2.8%