Member Article

How can an employment disciplinary investigation findings determine fitness and propriety?

Senior Managers & Certification Regime (SM&CR) firms are under a duty to consider fitness and propriety on an ongoing basis.  As a consequence, such firms need to remember that if, during the course of disciplinary or investigation processes or for performance reasons, questions arise as to an individual's fitness and propriety, firms should consider whether they meet the required standard to perform their role. In Radia v Jefferies International Limited EAT 2018, the Claimant, an analyst, was found to have been fairly dismissed by his financial services firm following findings by an Employment Tribunal that he lacked credibility and was evasive when giving evidence in his disability discrimination claim.

The Tribunal concluded that he had "misled" the tribunal, although did not state that he had been dishonest. The employer investigated the credibility findings and, although the employee was given the opportunity to defend himself, relied on the tribunal's findings and decided that his behaviour was dishonest and incompatible with his continued employment in a regulated position.

The employer also took into account rule 2.1.3G (10) of the FIT (Fit and Proper test for approved persons) module of the FCA handbook which states that when assessing staff, all relevant matters should be taken into account, including whether a person has been criticised by a court or tribunal, whether publicly or privately. Similar fitness and propriety rules can be found under the SM&CR.