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ICOBS 8.4 Employers’ Liability Insurance

Application

ICOBS 8.4.1R
  1. (1)

    1The general application rule in ICOBS 1.1.1 R applies to this section subject to the modifications in (2).

  2. (2)

    This section applies to:

    1. (a)

      any firm solely with respect to the activities of:

      1. (i)

        carrying out contracts of insurance; or

      2. (ii)

        managing the underwriting capacity of a Lloyd's syndicate as a managing agent at Lloyd's;

      in relation to general insurance contracts and, in either case, including business accepted under reinsurance to close;

    2. (b)

      all incoming EEA firms or incoming Treaty firms falling within (a) including those providing cross border services.

  3. (3)

    In this section references to:

    1. (a)

      an ‘employers’ liability register’ are to the employers’ liability register referred to in ICOBS 8.4.4R (1)(a);

    2. (b)

      a ‘director's certificate’ are to a2 statement complying with the requirements in ICOBS 8.4.4R (1)(b);

      22
    3. (c)

      employers' liability insurance include business accepted under reinsurance to close covering employers' liability insurance (including business that is only included as employers' liability insurance for the purposes of this section);2

      3
    4. (d)

      a ‘qualified director's certificate’ are to the statement complying with the requirements in ICOBS 8.4.4R (1)(b)(ii); and32

      2
    5. (e)

      a ‘historical policy’ are to a United Kingdom commercial lines employers' liability insurance policy or other evidence of cover issued or renewed before 1 April 2011.3

ICOBS 8.4.2G

ICOBS 8.4 does not generally apply to activities carried out in relation to a reinsurance contract (see ICOBS 1.1.2 R and ICOBS 1 Annex 1 Part 2 1.1 R) but it does apply to business accepted under reinsurance to close.

Purpose

ICOBS 8.4.3G

The purpose of ICOBS 8.4 is to assist individuals with claims arising out of their course of employment in the United Kingdom for employers carrying on, or who carried on, business in the United Kingdom, to identify an insurer or insurers that provided employers' liability insurance (other than certain co-insurance and excess cover arrangements)2 by requiring insurers to produce an employers’ liability register and to conduct effective searches for historical policies3. In particular it aims to assist ex-employees whose employers no longer exist or who cannot be located.

Principal obligation to produce an employers’ liability register and supporting documents

ICOBS 8.4.4R
  1. (1)

    A firm carrying out contracts of insurance, or a managing agent managing insurance business, including in either case business accepted under reinsurance to close, which includes United Kingdom commercial lines employers' liability insurance, must:

    1. (a)

      produce an employers’ liability register complying with the requirements in (2) and ICOBS 8 Annex 1;

    2. (b)

      obtain and submit to the FCA2 a written statement, by a director of the firm responsible for the production of the employers’ liability register, that to the best of the director's knowledge the firm in its production of the register is either:2

      2
      1. (i)

        materially compliant with the requirements of ICOBS 8.4.4R (2) and ICOBS 8 Annex 1, including (where necessary) how the firm has used and continues to use its best endeavours in accordance with ICOBS 8 Annex 1 1.1CR4; or2

      2. (ii)

        not materially compliant with the provisions referred to in (i), in which case the statement must also set out, to the best of the director's knowledge, the information required by ICOBS 8.4.4A R; and2

    3. (c)

      obtain and submit to the FCA a report satisfying the requirements of ICOBS 8.4.4C R,2 prepared by an auditor satisfying the requirements of SUP 3.4 and SUP 3.8.5 R to 3.8.6 R, and addressed to the directors of the firm.

      2
  2. (1A)

    2For the purposes of ICOBS 8.4.4R (1)(b):

    1. (a)

      ‘materially compliant’ means that in relation to at least ninety-nine percent of policies for which information is required to be included, the information in the register does not contain any inaccuracy or lack faithful reproduction (as relevant) that would affect the outcome of a search when compared to a search carried out with fully accurate and/or faithfully reproduced information; and

    2. (b)

      the firm must ensure that the director's certificate includes the description of ‘materially compliant’ referred to in (a).

  3. (2)

    For the purposes of (1)(a) the employers’ liability register is required to:

    1. (a)

      include the date upon which the register was produced;

    2. (b)

      include a database which:

      1. (i)

        reliably stores information required by ICOBS 8 Annex 1;

      2. (ii)

        in relation to information required by ICOBS 8 Annex 1 1.1R(1), contains accurate information and, in relation to information required by ICOBS 8 Annex 1 1.1R(2), contains information which faithfully reproduces the information that the firm has; and

      3. (iii)

        has an effective search function which allows a person inputting data included on the register relating to a particular employer over a particular period to retrieve information on the register relating to a potential employers’ liability claim corresponding to that employer and period;

    3. (c)

      allow for requests for information or searches relating to a potential claim to be made by:

      1. (i)

        individuals with the potential claim, or their authorised representative, or

      2. (ii)

        any employer to whom the potential claim relates; or

      3. (iii)

        an insurer which is potentially jointly and severally liable with another firm in relation to the potential claim; or

      4. (iv)

        a relevant insurance intermediary acting for an insurer in (iii);

    4. (d)

      allow for requests by a tracing office which meets the conditions in ICOBS 8.4.9R relating to the use of information on the firm's register to the extent that the information is necessary, and used solely, to enable the tracing office to provide comprehensive searching facilities to its users; and

    5. (e)

      allow for responses to requests or searches in (c) to be provided without delay.

  4. (3)

    For the purposes of (1)(b) and (c) the director's certificate and report prepared by an auditor2 must:

    2
    1. (a)

      relate to a version of the register as at a date no later than 12 months after it is first produced in accordance with (1)(a); and:

    2. (b)

      be obtained and submitted to the FCA within four months2 of the date in (a).

      2
  5. (4)

    For the purposes of (1):

    1. (a)

      United Kingdom commercial lines employers' liability insurance means commercial lines employers' liability insurance where both the employer’s business was or is carried on, and the employees’ course of employment was or is, in the United Kingdom; and

    2. (b)

      commercial lines business comprises contracts of insurance carried out in relation to persons whose employers' liability insurance relates to a business or profession they carry on.

ICOBS 8.4.4AR

2The information referred to in ICOBS 8.4.4R (1)(b)(ii) is:

  1. (1)

    a description of the ways in which the firm, in its production of the register, is not materially compliant;

  2. (2)

    the number of policies, in relation to which, either:

    1. (a)

      the firm is not able to include any information in the register; and/or

    2. (b)

      information is included in the register but information may be incorrect or incomplete;

    in each case as a proportion of the total number of policies required to be included in the register;

  3. (3)

    where the firm is only practicably able to provide an estimate of the numbers in (2), the basis of each estimate; and

  4. (4)

    a description of the systems and controls used in the production of the register and of the steps, together with relevant timescales, that the firm is taking to ensure that the firm will be materially compliant as soon as practicable.

ICOBS 8.4.4BG

2In relation to the written statement referred to in ICOBS 8.4.4R (1)(b):

  1. (1)

    ICOBS 8.4.4R (1)(b) does not preclude the relevant director from, in addition, including in the director's statement any of the following as relevant:

    1. (a)

      if a firm's employers’ liability register is more than materially compliant, a statement to this effect, and/or a statement of the extent to which the director considers, to the best of his knowledge, the firm to be compliant in its production of the register;

    2. (b)

      reasons for the level of any non-compliance; and/or

    3. (c)

      information relating to policies which are not required to be included in the register;

  2. (2)

    the statement regarding the firm's level of compliance with requirements in ICOBS 8.4.4R (2) and ICOBS 8 Annex 1, and, in relevant cases, the steps the firm is undertaking to ensure material compliance as soon as practicable, does not alter the underlying requirement that the firm has to comply fully with the relevant requirements in ICOBS 8.4.4R (2) and ICOBS 8 Annex 1 (that is, not just to a material extent). So, it is possible that a firm will be able to comply with ICOBS 8.4.4R (1)(b) but continue to not fully comply with the underlying requirements, for example, in respect of the policies falling outside the ninety-nine percent threshold. In relation to these policies, as well as those identified in any qualified director's certificate, the firm will need to remedy errors or omissions as soon as practicable, and have systems and controls in place to give effect to this on an ongoing basis.

ICOBS 8.4.4CR

2The report referred to in ICOBS 8.4.4R (1)(c) must:

  1. (1)

    be prepared on the basis of providing an opinion under a limited assurance engagement confirming whether the auditor has found no reason to believe that the firm, solely in relation to the firm's extraction of information from its underlying records, has not materially complied with the requirements in ICOBS 8.4.4R (2) and ICOBS 8 Annex 1 in the production of its employer’s liability register, having regard in particular to the possible errors and omissions referred to in (3) below;

  2. (2)

    use the description of material compliance as referred to in ICOBS 8.4.4R (1A)(a) adapted as necessary to apply solely to the firm's extraction of information from its underlying records;

  3. (3)

    address, in particular, the following risks:

    1. (a)

      information relating to certain policies issued or renewed on or after 1 April 2011 is entirely omitted from the register even though some relevant policy details are included in the firm's underlying records;

    2. (b)

      information relating to certain policies in respect of which claims were made on or after 1 April 2011 is entirely omitted from the register even though some relevant policy details are included in the firm's underlying records;

    3. (c)

      relevant information required to be included in the register, and which is included in the firm's underlying records, is omitted from, or is inaccurately entered on to, the register; and

    4. (d)

      information relating to policies which do not provide employers' liability insurance are included in the register.

ICOBS 8.4.5G
  1. (1)

    For the purposes of ICOBS 8.4.4R (2)(c) and ICOBS 8.4.4R (2)(d), a firm may put in place appropriate screening on its employers’ liability register to monitor:

    1. (a)

      requests for information and searches to ensure that they are being made for a legitimate purpose by persons falling into one of the categories in ICOBS 8.4.4R (2)(c); and

    2. (b)

      requests from tracing offices to ensure that the information is necessary, and will only be used by the tracing office, for the purposes of providing users of the tracing service with the same information as the firm itself would have provided had the inquirer approached the firm directly.

    If a firm has any reason to suspect that the information is, or may be, being misused then it may restrict the use of the information provided or request its return.

  2. (2)

    For the purposes of ICOBS 8.4.4R (2)(e) the FCA expects that, in the ordinary course, a person searching or making an information request will be provided with a response within one business day of the initial request.

  3. (3)

    In the FCA's view, commercial lines business does not include employers' liability insurance provided for retail consumers, for example, in relation to insurance taken out to cover liability in relation to domestic arrangements such as home help.

FCA notification requirements

ICOBS 8.4.6R

A firm must:

  1. (1)

    notify the FCA, within one month of falling within ICOBS 8.4.1R (2), as to whether or not it, or, if relevant, a member of the syndicates it manages, carries on business falling within ICOBS 8.4.4R (1) and, if it does, include in that notification:

    1. (a)

      details of the internet address of the firm or tracing office at which the employers’ liability register is made available;

    2. (b)

      the name of a contact person at the firm and their telephone number or postal address, or both; and

    3. (c)

      the period over which the firm or syndicate member provided cover under relevant policies or, if still continuing, the date that cover commenced; and

    4. (d)

      the firm's Firm Reference Number; and

  2. (2)

    ensure that the notification in (1):

    1. (a)

      is approved and signed by a director of the firm; and

    2. (b)

      contains a statement that to the best of the director's knowledge the content of the notification is true and accurate.

ICOBS 8.4.6AR

2A firm with potential liability under an excess policy and which satisfies the requirements in ICOBS 8 Annex 1 1.1B R must notify the FCA before the date upon which it first seeks to rely upon that rule and ensure that the requirements of ICOBS 8.4.6R (2) are satisfied in respect of this notification.

Requirement to make employers’ liability register and supporting documents available

ICOBS 8.4.7R
  1. (1)

    A firm must make available:

    1. (a)

      the information on the employers’ liability register either:

      1. (i)

        on the firm's website at the address notified to the FCA in ICOBS 8.4.6R (1); or

      2. (ii)

        by arranging for a tracing office which meets the conditions in ICOBS 8.4.9 R to make the information available on the tracing office’s website; and

    2. (b)

      the latest director's certificate and the latest report prepared by an auditor for the purposes of ICOBS 8.4.4R (1)(c), to a tracing office which has obtained information from the firm for the purposes of providing comprehensive tracing information, in accordance with ICOBS 8.4.4R (2)(d), provided that the tracing office has agreed with the firm not to disclosure confidential information in the certificate and the report to third parties, save as required by law.2

      2
  2. (2)

    If a firm arranges for a tracing office to make information available for the purposes of (1)(a)(ii) the firm must:

    1. (a)

      send to the tracing office copies of its latest director's certificate and report prepared by the firm's auditor provided that the tracing office has agreed with the firm not to disclosure confidential information in the certificate and the report to third parties, save as required by law;2

      2
    2. (b)

      maintain records of all the tracing information and copies of all documents it has provided to the tracing office;

    3. (c)

      retain all legal rights in relation to the ownership and use of the information and documents provided to the tracing office to enable the firm to provide that information or documentation to another tracing office or to make it available itself; and

    4. (d)

      send to the tracing office its Firm Reference Number.

ICOBS 8.4.8E

For the purposes of ICOBS 8.4.4R (2)(d) and ICOBS 8.4.7R (1)(a)(ii) the existence of published and up-to-date versions of both a certificate from the directors of the tracing office, stating that the tracing office has complied in all material respects with the requirements in ICOBS 8.4.9R (1) to (6), and a report under a reasonable assurance engagement,2 addressing the accuracy and completeness of the tracing office’s database, may be relied upon as tending to establish that a firm has satisfied the requirement to use a tracing office which meets the conditions in ICOBS 8.4.9R (1) to (6).

2

Qualifying tracing offices

ICOBS 8.4.9R

The conditions referred to in ICOBS 8.4.4R (2)(d) and ICOBS 8.4.7R (1)(a)(ii) are that the tracing office is one which:

  1. (1)

    maintains a database which:

    1. (a)

      accurately and reliably stores information submitted to it by firms for the purposes of complying with these rules;

    2. (b)

      has systems which can adequately keep it up to date in the light of new information provided by firms;

    3. (c)

      has an effective search function which allows a person inputting data included on the database relating to a particular employer over a particular period to retrieve information on the database relating to a potential employers’ liability claim corresponding to that employer and period;

  2. (2)

    maintains adequate records of the director's certificates and reports prepared by an auditor2 sent to it by firms for the purposes of complying with these rules;

    2
  3. (3)

    has effective arrangements for information security, information back up and business continuity and to prevent the misuse of data;

  4. (4)

    accepts search requests in relation to information in (1) relating to a potential claim from:

    1. (a)

      individuals with the potential claim, or their authorised representative; or

    2. (b)

      the employer to whom the potential claim relates; or

    3. (c)

      an insurer which is potentially jointly and severally liable with another firm in relation to the potential claim; or

    4. (d)

      a relevant insurance intermediary acting for an insurer in (c);

  5. (5)

    provides responses to requests in (4) without delay;

  6. (6)

    has adequate arrangements for providing to a firm, upon request and without delay, a full copy of the information on the database that the firm has provided to it;

  7. (7)

    includes in its published annual report:

    1. (a)

      a certificate from the directors of the tracing office stating whether the tracing office has complied with the requirements in (1) to (6) in relation to the period covered by the annual report; and

    2. (b)

      an independent report commissioned under a reasonable assurance engagement satisfying the requirement in ICOBS 8.4.9A R,2 addressing the accuracy and completeness of the database, prepared by an auditor satisfying the requirements of SUP 3.4 and SUP 3.8.5 R to SUP 3.8.6 R, and addressed to the directors of the tracing office; and

      2
  8. (8)

    provides to a firm making use of the tracing office for the purposes of ICOBS 8.4.7R (1)(a)(ii):

    1. (a)

      a copy of its annual report promptly after publication; and

    2. (b)

      upon request and without delay a full copy of the information on the database that the firm has provided to it.

ICOBS 8.4.9AR

2The requirement referred to in ICOBS 8.4.9R (7)(b) is that the report must include an opinion from the auditor confirming whether, in all material respects, the tracing office maintains a database which accurately and reliably stores information submitted to it by firms for the purpose of complying with relevant requirements in ICOBS 8.4 and that it has systems which can adequately keep it up to date in the light of new information provided by firms.

ICOBS 8.4.10G
  1. (1)

    ICOBS 8.4.4R (2)(b) and ICOBS 8.4.9R (1) require a firm, or a tracing office used by a firm, to have an effective search function in relation to the employers’ liability register database. In the FCA's view an effective search function is one which finds all matches in the register to any specified whole word.

  2. (2)

    For the purposes of ICOBS 8.4.9R (5) the term ‘without delay’ should have the same meaning as in ICOBS 8.4.5G (2).

  3. (3)

    In order to assist firms with their obligations under these rules the FCA has agreed to publish on its website at www.fca.org.uk/consumers/employers-liability-insurance a list of persons providing tracing office facilities which have published the directors’ certificate and independent assurance report referred to in ICOBS 8.4.9R (7).

Updating and verification requirements

ICOBS 8.4.11R
  1. (1)

    A firm must notify the FCA:

    1. (a)

      of any information provided to the FCA under ICOBS 8.4.6 R or ICOBS 8.4.6A R2 which ceases to be true or accurate; and

    2. (b)

      of the new position, in accordance with the notification requirements in ICOBS 8.4.6 R;

    within one month of the change.

  2. (2)

    A firm producing an employers’ liability register must:

    1. (a)

      update the register with any new or more accurate information falling within ICOBS 8 Annex 1:

      1. (i)

        by virtue of the entry into or renewal of, or of a claim made in relation to, a policy, as required by ICOBS 8 Annex 1 Part 1; and

      2. (ii)

        in all other cases, by virtue of the firm having received that new or more accurate information;

    2. (b)

      make the updated information in (a) available, in accordance with ICOBS 8.4.7 R, no later than:

      1. (i)

        in relation to new or more accurate information arising out of the entry into or renewal of, or a claim made in relation to, a policy, three months from the date of entry, renewal or the date upon which the claim was made; and

      2. (ii)

        in all other cases, three months from the date upon which the firm received the new or more accurate information;

    3. (c)

      update the register, no less frequently than once every three months, and include the date that the register was updated and a statement that the register may be relied on as up-to-date as at a date three months prior to the date upon which the register was updated, or such later date as applicable to the firm;

    4. (d)

      obtain and submit to the FCA2 a director's certificate:

      1. (i)

        no later than twelve months after the date of the most recent director’s certificate, obtained and submitted to the FCA2 in accordance with ICOBS 8.4.4R (1)(b) or this rule;

      2. (ii)

        complying with the requirements, and containing one of the statements,2 set out in ICOBS 8.4.4R (1)(b); and

        2
      3. (iii)

        in relation to a version of the employers’ liability register dated no more than four2 months prior to the date of the director’s certificate;

        2
    5. (e)

      obtain and submit to the FCA a report prepared by an auditor:2

      2
      1. (i)

        no later than twelve months after the date of the most recent report, obtained and submitted to the FCA2 in accordance with ICOBS 8.4.4R (1)(c) or this rule;

        2
      2. (ii)

        complying with the requirements set out in ICOBS 8.4.4R (1)(c); and

        2
      3. (iii)

        in relation to a version of the employers’ liability register dated no more than four2 months prior to the date of the report; and

        22
    6. (f)

      make available, in accordance with ICOBS 8.4.7 R, the director's statement in (d) and the report in (e) no later than four2 months after the effective date of the version of the register to which they relate, in place of the previous certificate and report.

      22
ICOBS 8.4.12G

For the purposes of ICOBS 8.4.11R (2)(c) a firm is required to include the date at which it updates the register. However, depending on the firm's processes for making information available for the purposes of ICOBS 8.4.11R (2)(b), the register may only be relied upon as being up-to-date as at a date three months prior to the date on which the firm has updated the register, or such lesser period as applicable to the firm as is consistent with the firm's processes. ICOBS 8.4.11R (2)(c) requires the firm to include a statement as to the date at which the register may be relied upon as containing up-to-date information which can be no earlier than three months prior to the new date on the register, but may be later depending on the firm's circumstances.

ICOBS 8.4.12AR
  1. (1)

    2For the purposes of ICOBS 8.4.11R (2)(a), 8.4.11R (2)(b) and ICOBS 8 Annex 1 a claim is deemed to be made in relation to a policy at the date on which the firm establishes, or otherwise accepts, that it has provided relevant cover under the policy, and is therefore potentially liable subject to the terms of the policy.

  2. (2)

    A firm must use reasonable endeavours to establish whether it has provided relevant cover:

    1. (a)

      within three months of being notified of a potential claim; or

    2. (b)

      if that is not possible, as soon as is reasonably practicable thereafter.

Transfers of insurance business

ICOBS 8.4.13R

The transferor in an insurance business transfer scheme must provide the transferee with the information and documents the transferor holds in compliance with ICOBS 8.4 in respect of the insurance business transferred.

Requirement to conduct effective searches for historical policies

ICOBS 8.4.14R

3A firm with actual or potential liability for United Kingdom commercial lines employers' liability insurance claims must take reasonable steps to conduct effective searches of their records when they receive a request to carry out a search for a historical policy from persons falling into one of the categories in ICOBS 8.4.4R (2)(c) or a tracing office which meets the conditions in ICOBS 8.4.9 R.

ICOBS 8.4.15R

3A firm must put in place a written policy for complying with ICOBS 8.4.14 R and operate in accordance with it. The policy must cover at least the following matters:

  1. (1)

    details of where the firm's historical policies are held or are likely to be held (including details of records which are archived or stored off site);

  2. (2)

    details of the different types of records to be searched by the firm, such as electronic files, paper files, and microfiche; and

  3. (3)

    details of how the searches will be carried out, including a description of how and in what circumstances the firm may decide not to conduct a search.

ICOBS 8.4.16R
  1. (1)

    3When a firm receives a request under ICOBS 8.4.14 R, from a qualifying tracing office, it must provide a response, in writing, to the requestor within one month of receiving the request.

  2. (2)

    This rule does not apply when the firm has conducted a search but no historical policies have been found.

  3. (3)

    When a firm receives a request under ICOBS 8.4.14 R, other than from a qualifying tracing office, it must provide a response, in writing, to the requestor within two months of receiving the request in accordance with ICOBS 8.4.17 R.

ICOBS 8.4.17R
  1. (1)

    3Where a firm has established that a historical policy does exist, the response should confirm what cover was provided and set out any available information that is relevant to the request received.

  2. (2)

    Where there is evidence to suggest that a historical policy does exist, but the firm is unable to confirm what cover was provided, the response should set out any information relevant to the request and describe the next steps (if any) the firm will take to continue the search.

  3. (3)

    Subject to ICOBS 8.4.16R (2), where the firm has conducted a search, but no historical policies have been found, the response should set this out clearly and explain that reasonable steps were taken to conduct an effective search.