Post-Weinstein, what arts trustees need to know about charity law

After the Weinstein revelations, it feels like the floodgates have opened. Many arts organisations need to deal with statements of inappropriate conduct, harassment and incidents which are potentially criminal, both recent and historic.

Organisations have a duty to all the people who work within their walls as well as those others who come into contact with them.

Given that so many arts organisations are charities, the question is: what does charity law mean for them in this situation? There are additional considerations around employment law and working with vulnerable groups such as children and young people.

Compliance with charity law is an important consideration for trustees. The Charity Commission regulates charities in England and Wales. Part of this role is administrative, but it has key investigative powers and the ability to take over failing charities.

Charities have a duty to report ‘serious incidents’ in the Charity Commission Annual Return. The Charity Commission does consider it to be best practice to report serious incidents as they arise but acknowledged in a consultation published in September, that there was no general legal obligation to do so.

For arts organisations, ‘serious incidents’ have historically tended to be theft, fraud and other financially-related issues but the definition includes matters that affect a charity’s reputation, and so includes safeguarding issues.

Trustees need to decide whether the complaint constitutes a ‘serious incident’ and then whether it should be reported or not.

Though the Charity Commission clearly likes charities to report matters, trustees need to decide if it is the right course of action. In my experience, if the Charity Commission feels that governance of the charity is working well and the trustees have taken appropriate steps to deal with a matter, then it is happy to wait until the results of any investigation – so long as there is no indication of a systematic problem.

A particular difficulty occurs when there may have been a culture within a charity where complaints were not welcomed, and numerous historic allegations begin to emerge.

The Charity Commission seeks to be a proportionate regulator so there is an acceptance that it should not be bombarded by incidents that may be minor in nature. This leaves a grey area and trustees need to exercise judgement about reporting matters.

My suggestion is that potentially criminal incidents should in principle be reported to the police and incidents that are serious in nature (whether or not potentially criminal) should be reported to the Charity Commission unless there is a specific reason not to do so.

In any event, these sorts of judgements should be recorded in minutes and all trustees should be involved in making decisions so far as is practical.

Main trustee duties under Charity Law relating to safeguarding

Assess safeguarding risks
Put in place policies and procedures to deal with allegations and incidents
Keep monitoring how the policies and procedures are working
If allegations or incidents arise, ensure the charity, through its staff, workers and volunteers respond properly and for the charity to report as necessary – whether to the police, the Charity Commission or other agencies
Review and update policies and procedures

– This article was published in the Stage Newspaper on 21 November 2017 –

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Post-Weinstein, what arts trustees need to know about charity law

Main trustee duties under Charity Law relating to safeguarding

SEAN EGAN CONSULTANTS