A director runs the risk of disqualification if they fail to fulfil their legal and directorial responsibilities.
If you are disqualified as a company director, it may affect several areas of your life. In essence, you will be unable to become the director of a company without the prior agreement of the court, or be directly/indirectly involved with the setting up, management, or promotion of a company or limited liability partnership.
Disqualification lasts for a period of up to 15 years, and as an alternative to having a disqualification order served, you may choose to voluntarily sign a disqualification undertaking, which means that proceedings don’t go through the court.
The rules of disqualification are laid down in the Company Directors Disqualification Act, 1986, and are designed to restrict abuse of the limited liability company structure in England, Wales and Scotland.
The Act prevents you from acting in the manner of a company director. In addition, asking someone else to manage a company under your instructions is banned, and can result in the third party also being prosecuted.
If an undertaking or order is breached, you may face a prison sentence of up to two years plus a further period of disqualification.
This accusation covers a wide remit, and can include:
A disqualification order does not prevent you from taking a job with the company, or from operating as a sole trader. The main issue is not to behave as though you are a director if you take an employed position within a company, or ask others to act on your behalf.
Fulfilling management roles such as hiring staff, controlling the company bank account or taking what might be regarded as executive decisions, may all be seen as breaching the disqualification order or undertaking.
It’s not only duties at work that are affected by director disqualification - other areas of life may also be restricted:
Should the disqualification order or undertaking be breached, you will be committing a criminal offence and could face a prison sentence of up to two years, plus a further period of disqualification.
Personal liability for company debts is also a possibility if you contravene the order. This liability would be for those debts incurred when the contravention took place.
Other people and associates may become involved if you request that they act on your behalf – they would also potentially become liable for company debts and face disqualification and prosecution themselves. This is also the case for the officers of a corporation if one of the directors has been disqualified, and they act on his or her instructions/behalf.
During formal insolvency proceedings, a report is sent to the Secretary of State detailing the conduct of all directors who were in place during the previous three years. The Insolvency Service acts on behalf of the Secretary of State, and they ultimately decide whether it is in the public interest to begin further investigations into the actions of individual directors.
If you are in line for investigation, the Insolvency Service will contact you for more details about your actions, and an explanation as to why you acted as you did. If they decide to pursue a disqualification order, they have a period of up to two years in which to apply.
Applications are passed through the court, and you will be given the opportunity to answer all allegations by providing a written ‘statement of truth.’ You can give a disqualification undertaking voluntarily if you wish, and this will halt court proceedings. Either way, you will be expected to pay court costs.
You are allowed to apply through the courts to become a director again if the need is urgent, but measures may be put in place to protect the public and restrict your powers in these instances.
25th April 2019
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