The advice sector is pushing back against the FCA’s plans to require advisers to record telephone calls amid cost concerns and fears clients could withhold information.
In a Mifid II consultation paper published last week, the regulator proposes extending the recording requirement to all “Article 3” firms, which includes advice firms and corporate finance boutiques.
The FCA says it is open to suggestions for alternative approaches that offer the same protection as recording but cost less, particularly for smaller firms.
Under Mifid II, firms are required to record telephone conversations and electronic communications that relate to “the reception, transmission and execution of orders, or dealing on own account”. These recordings must be held for at least five years.
But advisers have questioned how recording calls will work in practice and what might constitute alternative approaches for smaller firms. Given complaints to the Financial Ombudsman Service can occur further down the line, the value of the five-year holding period has also been challenged.
In the consultation the regulator sets out why in its view call recording will protect advisers and consumers.
It says FOS data has shown that most complaints about investments centre on the conversations when investments are sold.
The FCA says: “Where those conversations take place by telephone, the existence of tapes will therefore provide a clear audit trail of the intention and understanding of the parties leading up to the conclusion of a transaction, particularly in cases when allegations of misselling arise.”
It says consumers will benefit from a “self-disciplining deterrent effect”, where advisers ensure best practice because they are being monitored.
“Requiring recording because it is convenient for the regulator is not in the spirit of respecting data and privacy rights”
The FCA admits that advisers’ recordings will help its own thematic review or “mystery shopping” work, as well as being another source of evi-dence for its enforcement division.
But Zurich UK life regulatory developments head Matthew Connell warns the regulator should not put achieving its own objectives ahead of consumers’ privacy rights.
He says: “It is legitimate to require recording where there is a specific risk that is being addressed, like the risk of market abuse, but to require recording just because it is convenient for the regulator to dredge through large amounts of communication, that is not in the spirit of respecting people’s data rights and privacy rights.
“There needs to be a clearer case from the regulator about why the benefits outweigh the costs.”
The FCA admits advisers will incur equipment and ongoing compliance costs but says such charges have fallen in recent years. It says the cost of phone recording technology has fallen by a third since the FSA introduced the requirement to tape in 2008.
It adds data retention costs have also dropped since cloud storage was developed.
The regulator also notes it has chosen not to adopt the part of Mifid II that makes advisers record face-to-face interactions.
An FCA spokeswoman says: “Under the directive, firms must take a minute or a note of certain information during face-to-face meetings. The FCA would have to gold-plate Mifid II if it were to require taped recordings of meetings and we do not wish to gold-plate this provision.”
Advisers who already record phone calls say the practice has its merits but question the practicalities of recording a high volume of calls.
Investment Quorum chief executive Lee Robertson says his firm has recorded calls for several years because it is an investment management business as well as an adviser.
He says: “It is not massively burdensome but it comes at a cost so you always have to think about the proportionality. You need software, you need servers or a cloud-based solution.
“Then you have got the issues with reliability – what happens if a server goes down. We had a brief issue when we were bringing it in where it didn’t seem very reliable. All these issues impact on the working day.”
Robertson says there are gaps in the FCA proposals; for example, advisers will not have to record client meetings and potential issues with recording on mobile phones.
He says: “Many clients want to call on your mobile because they know you have always got it with you. We then call them back from a landline. That takes discipline and is not always possible.”
Thameside Financial Planning director Tom Kean says his firm records calls to protect against complaints. He says it helps to refer to the recording to check facts and figures, and on one occasion helped the business with a client accusation.
But Kean adds: “The companies required to record at the moment are big firms that place [deals] that need to be recorded for future reference. There are practicalities for a small firm recording every telephone conversation.
“The challenge is to record everything robustly when I might be in a different room on a different phone, having a chat with a client and thinking ‘this is now an advice event’, and having to change phones to my desk which has got the recorder.”
Personal Finance Society chief executive Keith Richards says while the changes might initially be seen by advisers as an extra regulatory burden they should create efficiencies for advisers and give extra protection around complaints.
Richards adds: “Advisers must be offered the support and information required to implement a system that suits their particular technological needs.
“They will also need assistance adapting their back office and compliance procedures in accordance with the new requirements.
“The FCA and advisers will also need to educate consumers, who may otherwise be sceptical about the need for the proposed changes. Some smaller advisers will be concerned about the impact on the personal nature of their brand, while some consumers may be inclined to withhold personal information as a result of their conversations being recorded.”
The FCA says it is open to suggestions about other approaches that give the same level of protection as recording but cost less, but is unclear on what these alternatives could look like.
Connell suggests to protect against market abuse, it could be enough for small firms to ensure the larger firms it places deals with stick to the recording requirement.
He says: “If a firm can demonstrate that the firm it places its orders with is taping, then perhaps that is an alternative, provided there is some kind of demonstration on the part of the smaller IFA the firms they deal with have those systems in place.
“There are other ways of recording things in a written form and playing back to customers, but that can also be a form of bureaucracy.
“Hopefully, if firms can produce a diagram of the buying and selling process and evidence that there is adequate recording going on up the line, then perhaps that could be an alternative.”
Fighting with the FOS
Richards questions whether the five-year timeframe for keeping recordings will be sufficient when it comes to complaints.
He says: “A brief analysis of FOS complaints data reveals a number of recently upheld consumer claims in respect of life and pensions relate to advice given more than five years earlier. This potentially undermines the seemingly arbitrary five-year period over which advisers would be required to retain their records.”
But Tisa technical policy director Jeffrey Mushens argues five years is too long for recordings to be kept.
He says: “The issue is around the logistics of having [the recording] in a searchable, readable form for a period of up to five years. Purely on a practical level, people move businesses, they move premises. The logistics of being able to search for them and keep them is problematic.”
Expert view: Chris Hannant
The FCA has just published its third consultation on the implementation of Mifid II. This is the paper that is most relevant to advisers and includes the proposal to extend the requirement for recording telephone conversations with clients.
As the FCA notes, the measures are intended to combat market abuse and make sense in the context of trading conditions, where timing is crucial to the outcome and you need to know who said what and when.
The proposals make less sense in an advisory context. The FCA seems to acknowledge this in saying it is open to an alternative approach to an Article 3 exempt firm if it delivers similar consumer protection.
The FCA makes the case that recording will help resolve complaints where what was said in conversation is disputed. I am aware some firms take this approach to protect themselves. However, following that logic, it would be appropriate to record all discussions with clients.
The existing requirement to put a suitability report in writing is the most appropriate consumer protection because it puts the recommendation in black and white. Most advisers will record any conversation with a client with a file note or email to the client, so an alternative might be an agreed contemporaneous note of the conversation.
The requirement is to record calls “of conversations and communications with all clients where these relate to/or intend to lead to the conclusion of a transaction, even where the transaction is not concluded”. So it only applies to conversations where advice is given and the consumer accepts it. In theory, if a firm never advised clients by telephone they would have nothing to record, but I imagine that would be a cumbersome and unfriendly way of working.
Finally, there is a further consideration. The suggestion coming from the Conservative party conference is we are heading for a “hard” Brexit. This would mean being outside the single market and, therefore, market harmonisation measures such as Mifid II. If this is the case, I am sure the European Commission would not pursue infraction proceedings against the UK for non-compliance. They take years to have effect in any event. So, the Government could choose to not apply further bureaucracy from Brussels.
Chris Hannant is director general at Apfa