The FCA highlighted that regulatory obligations have not changed regarding new communication channels (e.g., text, social, instant messaging and collaboration) and personal devices (mobile phones, tablets, etc.):

“We expect firms to have updated their policies, refreshed their training and put in place rigorous oversight reflecting the new environment — particularly regarding the risk of use of privately owned devices. These policies should be demonstrable to us and to your audit teams. It should go without saying that policies should prevent the use of privately owned devices for relevant activities where recording is not possible. New communication mechanisms, before they are used, should have controls in place where required and their use is approved by firm management. The regulatory obligations have not changed, the how may be changing, but the what remains the same.”

There has been an explosion in the use of communication tools such as Microsoft Teams and Zoom during 2020 to accommodate the change in circumstance. This has introduced real challenges for compliance teams when it comes to supervision and surveillance.

When the UK initially entered lockdown in March 2020, the FCA released a statement acknowledging the unprecedented times we find ourselves in. They reminded firms of their obligations to record and monitor all forms of communication as per MiFID II requirements.

More recently the FCA’s stance on working from home is that office and working from home arrangements should be equivalent. Hoggett said, “While scenarios emerged early in the pandemic where the usual levels of recording and surveillance were not possible, our experience suggests firms have now overcome these challenges. We expect that going forward, office and working from home arrangements should be equivalent — this is not a market for information that we wish to see be arbitraged.”