UT-2023-000032 - [2024] UKUT 00265 (TCC)

Mr. Fatchett said that the Applicant does not dispute any of the facts around Mr Ashraf’s termination at SJP. However, the Authority’s own guidance admits of the possibility of rehabilitation and for matters to be reviewed in context. The 2021 termination by Tenet is the primary issue here.

As far as the Tenet termination is concerned, there are two parts to this. The first was the meeting on 16 September 2021 (with Ms Ford / Mr Forbes). The second relates to Mr Hancock’s investigation and the meeting on 30 September 2021.

Ms Ford in her own evidence stated that the issues raised by her were individually minor and in the main commercial matters. Mr Fatchett submits that on no sensible analysis would these be regulatory-based termination reasons.

The second half of the termination recommendation is based on Mr Hancock’s recollection. It is not contemporaneous. The only contemporaneous note was produced by Mr Ashraf, who transcribed what was said in the Teams meeting. This transcript has never been challenged. The “admissions” referred to by Mr Hancock do not appear in the transcript. During the authorisation application process the Authority should have obtained further information from Tenet. The Authority acted unreasonably in failing to do so. The SUP15 and the regulatory reference do not make it clear to the reader that much of what Tenet said was disputed.

The reasons Mr Hancock gave for recommending termination of Mr Ashraf have been disputed throughout. The Authority knew of Mr Ashraf’s appeal to Tenet in November 2021. The Appeal Letter contains all the information rebutting the termination reasons. The Authority should have been aware of the “dispute” and addressed their minds to the evidence. Their approach seems to have been simply to rely on the Tenet SUP15 and reference and then double down. This approach is unreasonable as it does not discharge the basic need to investigate matters properly. The Authority approached the Tenet witnesses and, as part of that process, should have looked into the evidence which it is said supported “MH1”. The lack of a probing investigation by the Authority means that they effectively relied on what Tenet said without properly looking into all the evidence provided by Mr Ashraf.

The statements of Mr Ashraf’s future intention in his written statement (in February 2024) and in interview to the Authority (in June 2022) were both true when made. Mr Ashraf has exhibited two positive references and it was reasonable to think that he could get a position with another firm. It was only after trying and failing with 14 firms that Mr Ashraf decided to change tact and look to be authorised on his own account.

The Authority should have considered the evidence which explains why the mortgage cases (in MH1) should not be a concern.

Mr Fatchett submits that, taking the evidence in context, looking at the lack of depth in the investigation of the documentation provided by Mr Ashraf, the partial disclosure by Tenet and the lack of contemporaneous evidence provided by them, the Authority acted unreasonably. There could be no reason for the Authority not properly to look into the heavily contested investigation by Tenet. The Authority appear to have simply relied on the Tenet investigation and termination without properly testing it. In these circumstances, the Authority acted unreasonably in not properly investigating. If it had, then the contemporaneous notes and documentary evidence of compliance in the mortgage cases would have resulted in a different decision.