Which of your Directors will be responsible and accountable for the compliance of your sales department?
Currently, FCA Authorised Firms, such as directly authorised motor dealers, operate under the Approved Persons regime. As a minimum, each dealership currently has a Control Function 1 (CF1) Approved Person, this person holds overall responsibility for the culture and compliance of the business. The CF1 role is generally the proprietor of an independent owner driver dealership, the managing director or sometimes the finance director, as a penalty for being in the wrong place at the wrong time of a large or PLC dealership. Depending on the size of the business there are other historical regulatory roles such as CF8 (Apportionment and Oversight Function) or CF10 (Compliance Oversight Function) held by other directors or senior managers other than that of the MD.
This is changing, The Senior Managers & Certification Regime will be replacing The Approved Person Regime for Directly Authorised Firms (Appointed Representatives in networks will remain as they are). This change will be fundamental in the way compliance and importantly the responsibility for compliance is currently managed in a motor dealership, with the most significant impact not only on the directors who are familiar with accountability for their business, but the management and sales teams.
Source: FCA CP17/25
Under the Senior Managers Regime there will be three tiers of responsibility that would apply to an FCA directly authorised Motor Dealer:
The most senior people in the business or anyone who performs a Senior Management Function needs to be approved by the FCA, this will encompass owners, directors and potentially may include General Managers dependant on the business structure. Directors not listed on the FCA register but listed at Company’s House will be required to register to the new FCA “Directory”. The information made public on the Directory will be available to a range of stakeholders including consumers, firms, trade bodies, regulators and law enforcement
You must take reasonable steps to ensure that the business of the firm for which you are responsible is:
Each dealership will need to have in place for these individuals:
Statement of Responsibilities - A document that every senior manager needs to have, sets out what they are responsible and accountable for. This needs to be sent to the FCA for approval and be kept up-to-date
Duty of Responsibility – Every senior manager will have a duty of responsibility. This means that if a firm breaks one of the FCA requirements, the senior manager responsible for that area could be held accountable if they did not take reasonable steps to prevent or stop the breach.
Criminal record checks – A requirement for a business to conduct annual criminal records checks for senior managers and non-exec directors as part of checking they are fit and proper.
The Directory – Directors of the company not listed on the FCA Register would need to be listed in The Directory to be published online, centrally hosted by the FCA and freely accessible to the public. It would provide a central location for information on Directory Persons and Senior Managers at all FSMA-authorised firms across multiple sectors regulated by the FCA.
Applies to employees who are not Senior Managers, but their role may involve a risk of significant harm to the firm or any of its customers. Managers within the business who can cause significant harm to the business, Sales Managers and Business Managers may fall into the Certification Regime as may General Managers who escaped the Senior Managers role. For these staff, the dealership will be required to evidence they have carried out a check and confirm their suitability to do their job at least once a year.
Individual Conduct Rules - sales staff who perform financial services roles, such as giving finance quotations or settlement figures, will be subject to basic standards of behaviour that people performing financial services activities are expected to meet. Firms need to train their staff on the conduct rules and how they apply to them. Firms will need to report breaches of conduct rules resulting in disciplinary action to the FCA.
*Footnote: Automotive Compliance Ltd, Appointed Representatives are out of scope for this directive.
Should the current stance that Appointed Representatives become in scope at a later date, this will become the responsibility of the principal firm to implement ..ie Automotive Compliance
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