FCA Non-Financial Misconduct Rules: What Do They Mean for Recorded Communications?

On 1 September 2026, the FCA's new rules and guidance on non-financial misconduct (NFM) came into effect. The changes bring serious work-related bullying, harassment and violence more clearly within the Conduct Rules framework for non-bank firms and provide additional guidance on how NFM should be considered under COCON and the Fit and Proper test (FIT). For firms, the immediate work has been around policies, training, Conduct Rule breach reporting, fitness and propriety assessments and regulatory references.

 

But implementation is only part of the challenge. What happens when a real allegation arises and the firm has to establish what actually happened?

Consider a workplace conduct allegation following a meeting, call or work event. Two people give different accounts. Witnesses remember the interaction differently. Messages exchanged afterwards provide some context, but not the full picture. Perhaps a relevant conversation took place on a recorded channel.

 

The firm then has to determine what evidence exists, how reliable it is and whether the behaviour engages internal policies, COCON or FIT. The FCA acknowledges that firms will continue to have to exercise judgement because guidance cannot address every possible scenario. That makes the quality and availability of evidence particularly important.

The FCA's new COCON guidance makes clear that relevant conduct can involve communications. COCON 4.3.18G states that the behaviour covered is not limited to “words, communications and gestures”, while COCON 4.3.17G confirms that conduct may consist of a single incident, several incidents or a course of conduct.

 

One call or message might evidence an incident. Several communications over time might provide evidence of a pattern. Equally, a recording should not automatically be treated as conclusive: it may need to be considered alongside witness accounts, messages, system records and other available evidence.

 

In practice, NFM investigations may therefore require firms to piece together evidence from multiple sources and assess its credibility, consistency and context. The challenge is not simply choosing between competing accounts, but assessing all available evidence to determine which account is most consistent with the facts.

 

This isn't a requirement to record everything. Indeed the new rules do not introduce a general requirement to record employee communications to identify NFM. The FCA is also explicit that firms do not need to monitor employees' private lives or social-media accounts and should not do anything contrary to privacy, employment or other relevant law.

 

The communications-recording question is therefore narrower: Where relevant business communications are already legitimately recorded, can the firm identify, preserve and retrieve them if they become relevant to an investigation?

For Compliance, Legal, HR and communications-recording teams, the new regime provides a useful reason to test how this would work in practice. Know what is recorded. Which employees, channels and communication types are subject to recording? If an investigator requests a particular conversation, would the firm know where to look?

 

Know whether it was captured. An expected recording that cannot be found creates a different issue from a communication that was never subject to recording. Firms should understand how they identify capture failures and reconcile expected against captured communications.

 

Preserve relevant evidence early. Once an allegation arises, potentially relevant communications may need to be identified, secured and preserved alongside other evidence.

 

Consider the wider context. The FCA identifies repetition, patterns of behaviour, duration, impact, seniority and aggravating or mitigating factors as relevant when assessing seriousness. A single recording may therefore be only one piece of a much wider evidential picture.

 

Control access. NFM investigations can involve highly sensitive information. Access to recorded communications should remain appropriately authorised, controlled and auditable.

 

The FCA's NFM changes are ultimately about conduct, accountability and culture—not communications technology. But they illustrate an important reality for regulated firms. A communication originally captured for one regulatory purpose may later become evidence relevant to another.

 

When that happens, retaining data somewhere isn't enough. Firms need to understand what was recorded, whether expected records were successfully captured, where they are retained and how authorised teams can retrieve them.

 

As firms move from implementing the new NFM framework to applying it to real cases, that ability to find, preserve and understand communications evidence in context could become an important part of conducting fair, consistent and defensible investigations.