The credibility of evidence offered by a claimant, witness or respondent in legal proceedings may be considered in fitness and propriety assessments. That is the implication of the judgement in Radia v Jefferies International Ltd UKEAT/0123/18/JOJ.
The case, which was heard at an Employment Appeal Tribunal, concerned a claim of unfair dismissal by a Senior Manager in an investment bank who had lost his job due to gross misconduct.
The claimant had previously brought an unsuccessful claim of disability discrimination against his employer at an employment tribunal in which it was held that his evidence was ‘not credible in many respects’ and ‘on lots of occasions evasive’, whereas evidence provided by the employer was deemed ‘credible and honest’.
The claimant was later suspended by his employer and subjected to disciplinary proceedings during which it was concluded that he was no longer considered ‘fit and proper’ to carry out a regulated role. The employers considered that the claimant had ‘materially and fundamentally breached’ his contract of employment ‘by acting dishonestly’. Under FCA rules, a person’s ‘honesty, integrity and reputation’ should be taken into consideration, including whether a person has been ‘criticised by a court or tribunal’. As such, the claimant was dismissed for gross misconduct. The subsequent case of unfair dismissal failed and was rejected on appeal.
People working in financial services should therefore remember that failing to be honest can be costly. Under SM&CR, which will apply to FCA solo-regulated firms from December 2019, Senior Managers and Certification Staff must be ‘fit and proper’ to carry out their roles and all financial services staff (except certain ancillary roles) will be subject to the FCA’s Conduct Rules. These measures increase personal accountability within the sector. Conduct breaches will be recorded on regulatory references for Senior Management and Certification roles which may have an adverse affect on individuals' careers within the sector.