A recent decision of the Royal Court in Jersey has looked at the approach to the fit and proper test in the admission of advocates to the Jersey Bar. For those of you that are not familiar with being admitted to the Jersey Bar you have to meet the qualification requirement (practical experience and passing the exams) and the requirement to be a "fit and proper person to be admitted."
In this case the individual was found by a professional disciplinary tribunal in England to have touched someone in a sexual manner without their consent and they were suspended from practice as a lawyer for six months. Their Jersey-based employer was not informed of the disciplinary tribunal until after this sanction had been imposed. The employer therefore carried out its own investigation, and held that there had been misconduct/dishonesty as the employee had failed to notify them of the disciplinary proceedings. The employee was given a final written warning and suspended.
On their return, and having passed the qualification requirement the employee sought admission to the Bar as a Jersey Advocate, which led to this decision.
At first blush, financial services and professional services businesses in Jersey may wonder why this case is relevant to them. When viewed narrowly, they may say there is limited correlation between this test and say the test applied by the JFSC. However, when looked at more widely it is clear that there are fundamental principles at play about the correct application of this wording, and the need to ensure the highest standards of honesty and integrity. In our view, this decision is likely to be applicable to financial services and other regulated professional services employers in Jersey.
The first take away point is that the fit and proper test "involves all elements of the Applicant’s character and is not limited merely to criminal convictions or the findings of some regulatory or disciplinary inquiry." This is similar to the approach taken by the Royal Court to individuals regulated by the JFSC in looking at this issue more widely than financial misconduct. It is a wider question.
The second take away is that this is an objective question. The relevant regulator is unlikely to take into account the views of the employer, as it must make its own determination.
The last point is the one that I find really interesting as an employment lawyer, which was the approach taken to the allegation of dishonesty, which apparently arose due to "deep rooted mental health issues brought about by the complaint made against him." In other words the employee had a disability, which led to them withholding the fact of the disciplinary proceedings from their employer. The approach taken by the Law Society, and endorsed by the Royal Court, was effectively to give due allowance to the impact of the disability and to adjust their normal processes (make reasonable adjustments) in relation to this. So rather than saying the individual was dishonest and therefore they were not fit and proper (which absent a disability would likely have been the position), the Law Society argued that this was a one-off incident brought about the disability so should have a limited impact on the fit and proper test.
The question of whether someone is fit and proper is therefore very nuanced. Businesses should not focus simply on financial misconduct. Where someone's conduct is due to something arising as a consequence of their disability - the "something" here being the dishonesty which arose out of the mental health issues - businesses (and regulators) will need to factor this in to their decision making process.
We wish to emphasise for the avoidance of doubt that consideration of the fit and proper test involves all elements of the Applicant’s character and is not limited merely to criminal convictions or the findings of some regulatory or disciplinary inquiry