Legal matters: Out of hours emails and incorporated clubs voting at AGMs

Alistair Dunsmuir
By Alistair Dunsmuir May 12, 2017 06:05 Updated

Jackie Howe is chief executive of the National Golf Clubs’ Advisory Association NGCAA), which provides legal advice and support to UK golf clubs. She is backed up by a team of specialist solicitors to assist in legislative guidance for clubs. Here, she asks: Do you expect employees to answer emails outside of working hours? And who can vote at an AGM if your golf club is incorporated?

Jackie Howe

France has taken a step to alleviate work-related stress with a new law which came into effect on January 1 to give workers the legal right to ignore work emails during their time off. It is designed to encourage staff to take a proper break from work and to escape the permanent connection culture of the modern workplace, driven by technological advances of mobile phones and other devices. The legislation affects businesses with more than 50 employees and, whilst it does not have effect in this country, it does serve up some food for thought for employers on this side of the Channel.

Employers all over the world should always take the health and wellbeing of workers seriously, underlined by the fact that employees in this country have the legal right to daily and weekly rest breaks and 5.6 weeks of holiday. This French law enforces the importance of being able to ‘switch off’ at any time when an employee is ‘away from work’ which should be a consideration for all employers to protect the health of their workers. A barrage of work-related emails can increase stress levels for employees whilst they are on their ‘down-time’ so it may be a thought for UK employers to take some steps in the direction of the French.

A blanket ban might be a step too far for some employers, especially those in customer-driven sectors, but senior managers could think about what they can do to limit out of hours activity; for example, they should be mindful not to send instructions to employees after the working day ends, or over the weekend. Employers could introduce procedures that encourage employees to take a proper break during their annual leave. For example, some organisations apply restrictions preventing individual employees from accessing their inboxes remotely during holidays lasting two weeks or more, to encourage them to take a complete break.

Even though blanket ‘right to disconnect’ employment rights are unlikely to be introduced for UK workers, employers should not ignore the issues that can arise from excessive use of digital devices. Where possible, they should take proactive steps to encourage all employees to adopt a healthy lifestyle and promote work-life balance.

We have incorporated – now what?

If your club is incorporated – that is, it is a limited company, it is inevitable that people will still refer to it as ‘the club’ – because the company is the club and the club is the company- right?

Well maybe, maybe not.

A company’s articles of association may refer to it as capable of being described as the ‘company’ or the ‘club’ – interchangeably. Similarly, the articles could distinguish between the company and club – intentionally separating the two – on the basis that the club is something run and managed by the company.

Why does this matter – indeed, does it matter at all?

Well, it depends. If in order to be a member of the club one must be a member of the company (and vice versa) then it maybe makes little difference. The intention being that admission to membership is to the company and therefore the club.

But, consider this. If only certain categories of member are entitled to attend and vote at general meetings of the company then those who are not, whilst being club members are not company members – unless the company has different membership classes (or rights which are differently expressed for different categories in the company’s articles).

Confusing, isn’t it? But it does matter – because every member has the right to know where they stand – and just as importantly, the directors of the company need to know who has what entitlements, or not, as the case may be. Any looseness in the drafting of the company’s articles of association, a lack of clarity as to the rights of different categories of member or the existence of rules / bye-laws which conflict with the letter of the articles could become a problem when, for example, it comes to voting in a general meeting. There should be no uncertainty as to who is entitled to vote, to speak or even be present. The company needs to be sure who is entitled to receive notice of a general meeting and who has the right to appoint a proxy to attend, speak and / or vote for him.

If the articles provide that ‘The club shall be called Blackacre Golf Club Limited’ implying that club and company are one and the same – that’s fine.

If the company is limited by shares and the articles stipulate that ‘every adult playing member shall hold at least one share in Blackacre Golf Club Limited’, things start to get a little less certain – for two reasons:

  • First, if club and company were one and the same – an adult playing member could and would not be such without having already been admitted to membership of the company – that is, it would require that a share has been registered in his name in order to have become a member; and
  • This wording suggests that one could become a member (an ‘adult playing member’ of the club) and then acquire a share (in the company) – which of itself creates a distinction between the club and the company.

Where the articles distinguish between club and company – and provide, effectively, that one might be a member of one but not the other, that’s fine provided the relationship between the two is understood, that members (of club and company respectively) understand what rights and privileges they enjoy as a member of each (or either one of them) and that the administrative requirements laid down in the articles do not confuse the issue.

If, for example, it is stated that no-one may become a member of the club unless and until they have become registered as the holder of at least one share in the company – or, if it is limited by guarantee, until they have been admitted to membership of it – then the entry of that person’s name in the company’s register of members is a necessary pre-requisite to club membership.

Turning back to the question of meetings – one must know the nature of a meeting to be called. If club and company truly are one and the same – the convening of a general meeting is straightforward. Notice must be given to all those who, under the articles, are entitle to receive it.

If club and company are not one and the same – then one must be sure whether a club or company general meeting is to be called. Not all members of the club will necessarily have the right to receive notice, let alone to attend and vote at a company meeting.

If your club is incorporated – and especially if limited by shares – it is well worth reviewing the articles of association and your rules / bye-laws to identify any anomalies in the drafting which confuse or wrongly conflate the identities of club and company – or, if membership categories or the rights attaching to them have changed over the years – they have simply not kept abreast of such changes.

A boring task it may be – but better to remove anomalies and render the drafting certain at your leisure than to see your chairman having to face hard questions in the throes of a difficult and confrontational general meeting.

The NGCAA is on hand to advise on whether changes to your club’s constitutional documents are necessary or desirable and on any other corporate, constitutional and governance issues.

The NGCAA provides support, advice and guidance – from start to resolution – on all legal matters impacting upon both proprietary and private members’ golf clubs in membership. The NGCAA can assist with any legal issues that a club may encounter, including the following: employment law; disability / equality; club constitution, voting procedures; discipline of members; CASC; social media / Wi-Fi; neighbour disputes; redundancy; training; licensing and hospitality; membership disputes; articles of association; club rules / byelaws; consumer credit; data protection; PRS / PPL; property lettings and policy reviews.

The National Golf Clubs’ Advisory Association

The Threshing Barn, Homme Castle Barns,

Shelsley Walsh, Worcestershire, WR6 6RR

Tel: 01886 812943


Alistair Dunsmuir
By Alistair Dunsmuir May 12, 2017 06:05 Updated
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