ESM2503 - Offices: how an office is created

An office may be created by a charter, statute, or other document which is, or forms part of, the constitution of an organisation or which governs its operation. For example, a director of a company is an office holder because the Companies Act requires a company to have a board of directors and similarly all companies are required to have a company secretary; a Special Commissioner holds an office created by the Taxes Acts. There is no statutory definition of ‘director’ but the term includes executive, non-executive and nominee directors.

But not everyone who carries out duties specified by the law is an office holder. A local authority has a statutory duty to collect refuse but a dustman does not hold an office. On the other hand a Returning Officer does hold an office because not only the duties but also the 'post' is established by law.

The appointment of a succession of individuals to a post or job title is not in itself sufficient to establish an office. An office is a separate and independent position to which duties are attached; an office does not owe its existence to the incumbent or the discretion of an organisation. For example, the post of manager of a factory or a head of division in an organisation is not an office because such a post will normally only exist as long as the organisation wishes. It will not have the independent existence or endurance required to establish it as an office.

An office can also be created by custom. But if there is no written authority there must be a long-standing practice or unwritten constitution which makes the existence of the office clear.

The following are examples of posts which are or may be offices

• company director and company secretary
• clergyman
• coroner
• chairperson or member of a Rent Tribunal, VAT Tribunal, etc
• Local Veterinary Inspector(LVI)
• sub-postmaster/sub-postmistress
• Special Commissioner

There are of course many others.

If you have any doubts about whether a particular post is an office, you should in the first instance ask for reference to specific statute, or for a copy of any instrument or documentation which brings the post into being. For example

• see Section 2 TMA 1970 onwards regarding the office of General Commissioner, the Clerk to the Commissioners and Special Commissioner
• in the case of a club secretary, you should ask to see the constitution and rules of the club.

If you require further advice, contact PAYE & NIC (Technical).