This is the fourth in our series of Senior Mangers & Certification Regime (SM&CR) articles that we will be releasing in the run up to the 9 December 2019 commencement date for solo-regulated firms. The other articles in this series can be found here:
- Implementing SM&CR for solo-regulated insurance businesses – Part 1: Four fundamental elements
- Implementing SM&CR for solo-regulated insurance businesses – Part 2: Six tasks to be starting now
- Implementing SM&CR for solo-regulated insurance businesses – Part 3: Developing your HR processes
In this article we will be focusing on further developing your firm’s HR processes in order to be ready by the commencement date which is now just four months away.
As the majority of the firms we deal with are SM&CR Core firms, the advice in this article has been tailored as such. If yours is a Limited or Enhanced firm, or an EEA/Third Country branch, slightly different rules apply, and we would be happy to discuss them with you. As with our previous articles we are framing this article around the application of the new regime to general (non-life) insurance intermediaries.
Training your relevant staff on how the Conduct Rules apply to their roles
As we mentioned in our second article, you should now have completed the process of identifying which employees within your firm will be caught by the new Conduct Rules. These new rules will capture most of the employees at your firm, except for ancillary staff (e.g. receptionists, personal assistants).
Your firm is required to train these staff on how these new rules affect their roles. Senior Managers and Certification Staff must be trained on, and abide by, the Conduct Rules from 9 December 2019, and other in-scope staff must be trained within a further 12 months. In practice only the largest firms with the biggest staff populations have planned to take the full 12 months; most firms have aimed to complete their Conduct Rule training as soon as possible.
A Senior Manager at your firm must be allocated a Prescribed Responsibility (PR) for ensuring that the firm meets the requirements around Conduct Rule training, as well as the reporting of Conduct Rule breaches to the regulator (see below).
Your firm will need to develop a process to ensure that all relevant employees, including new joiners, and those who change role and become relevant staff, receive their Conduct Rule training within the appropriate time frame. This process should also generate a record of who has received their training and when they received it. This does not need to be a stand-alone process – it could be added to existing processes such as training plans and training records.
Employees should also be notified that their Conduct Rule training will contribute to the minimum of 15 hours of annual CPD required by the Insurance Distribution Directive for IDD relevant staff.
The five core Conduct Rules apply to the majority of staff, and the additional four Rules apply to a more limited senior management population. Depending on the size of your firm you may wish to train these populations together or separately.
Your firm is free to chose the actual method of training. E-learning or face-to-face training are both fine for this content – the concepts are not complicated – although staff may appreciate the opportunity to ask questions. The Conduct Rules are high-level “commandments” describing good conduct, and therefore some discussion of hypothetical scenarios, in the context of your firm’s values, may help your staff develop a shared understanding of where the line is drawn between good and bad conduct. Incorporating scenarios in the training will also help employees ground the Conduct Rules in the context of their roles.
Whilst they remain ultimately responsible, firms are free to outsource their Conduct Rule training in its entirety, or hire an external firm to prepare and/or deliver the content. Public training courses tend to be too generic to generate any added value for the business; firm-specific content is better as it can be more easily related to the employees’ roles.
Notifying the FCA of Conduct Rule breaches leading to disciplinary action
Firms will need to build into their internal disciplinary processes the new Conduct Rules and the reporting process to be followed in case of a breach by an employee. Firms must notify the regulator when disciplinary action has been taken against an employee as a result of a Conduct Rule breach.
The timing for notifying the regulator for Conduct Rules breaches is:
- For Senior Managers, the firm must notify the FCA within 7 business days of concluding disciplinary action, using the relevant form.
- For all other employees, the FCA requires the notification to be made in a report which is submitted once a year via the GABRIEL system.
Firms will need to submit an annual return to the FCA regarding Conduct Rule breaches, even if there have been no breaches to report over the 12 month period. This is to ensure that firms are correctly monitor and identify Conduct Rule breaches.
What constitutes “disciplinary action” and is therefore a trigger to report to the FCA is as follows (only when as a result of a breach of the Conduct Rules):
- issuing a formal written warning;
- suspension or dismissal of a person; or
- reduction or claw-back of remuneration.
To ensure the Conduct Rules are considered, and the reporting obligation is not missed, the HR team should add a specific step to the disciplinary process to consider whether the issue constitutes a breach of the Conduct Rules.
The purpose of this breach notification requirement is, along with the other SM&CR requirements, to raise standards in the sector. Given the potential impact on an individual of a breach notification, it would therefore also be wise to include reference to the firm’s breach reporting obligations in its employment contracts.
Mapping the Conduct Rules into your performance management tools
Your firm’s HR team will need to build the new Conduct Rules into your current performance management tools. You may have existing statements of your firm’s values, as well as competency frameworks and staff appraisal forms. These will need to be updated to reflect the requirement to comply with the Conduct Rules.
In particular, relevant employees and their managers will need to consider the Rules when carrying out their annual performance appraisals. A practical way of encouraging this is to add an explicit reminder to the appraisal form templates.
Mapping Statements of Responsibilities into your performance management tools
Under SM&CR every Senior Manager must have a Statement of Responsibilities (SoR) that sets out what they are responsible and accountable for, including any Prescribed Responsibilities they have been allocated. The SoR must be submitted to the FCA when applying for Senior Manager approval, and when there has been a significant change in a Senior Manager’s responsibilities.
The performance appraisal for each Senior Manger should explicitly consider their performance against the responsibilities set out in their SoR, including their Prescribed Responsibilities. Again, a practical way of encouraging this is to add an explicit reminder to the appraisal form templates used for Senior Managers.
We hope you have found this article useful and if you have any questions about anything raised in this article or more general SM&CR questions please do get in touch.