The Board now under the spotlight

The last few years are difficult to explain, says Craig Watson, UK head of Financial Risks and Cyber at RSA.

We witnessed the perfect storm for businesses of every size, a hardening insurance market was exacerbated by external factors which no business can ignore or avoid. The hardening market saw capacity reduce, markets exit, coverage being restricted, and of course pricing increases. But just as these factors started to ‘bite’, we witnessed the unprecedented challenges caused by a global pandemic. Across the UK management teams, business owners and boardrooms were having to consider a myriad of challenges.

Firms that successfully weathered the COVID storm have barely had time to catch their breath before being hit by difficult emerging macroeconomic conditions. Inflation has risen sharply, since COVID restrictions ended and the economy reopened, and the Bank of England is considering interest rate rises to tackle rising prices. The impact of Brexit is being felt in the form of increased friction on trade and investment, disruption to supply chains and labour shortages, with many sectors struggling to fill positions that were previously occupied by EU workers.

It hasn’t been an easy time running a business. The pandemic put businesses, their directors and management teams under significant pressure to make critical decisions on behalf of colleagues, customers and other stakeholders while complying with their moral and legal obligations – all during a time of great uncertainty and change. As we move into the “new normal”, we’ll undoubtedly see some businesses – and therefore their directors and officers – singled out for their handling of the crisis, whether by customers, employees, regulators or shareholders.

Areas where there could be scrutiny include:

Hybrid working: Businesses of all kinds have had to adapt to remote and flexible working and arms’-length customer relationships by adopting new, agile IT solutions. This throws up all sorts of implications for the board in terms of the operational resilience of its IT estate, data security and privacy – from increased vulnerability to attack by fraudulent actors to how personally identifiable information is stored and used to maintain GDPR compliance.

Diversity & Inclusion: The current US administration is setting out measures to advance equal opportunity in the workplace, and several public companies have recently been sued by their own shareholders, who have accused directors and officers of failing to diversify their boards and comply with anti-discrimination laws. Of course, when America sneezes, Europe catches a cold, and many UK businesses are likely to find their diversity and inclusion practices under the spotlight sooner or later. Equal pay claims, launched when employers don’t provide equal pay for equal work, are one such example.

Environmental, Social & Governance (ESG): On the back of COP26, the ESG movement is continuing to climb up the board agenda. Risks associated with health and safety, climate change, human rights and community impact are rightly gaining management attention. As pressure for ESG disclosures mounts, companies will have to understand what risks they’re sitting on, reimagine reporting and, in many cases, rethink their strategies. The question is whether companies continue to treat sustainability as a tick-box exercise or undertake a substantive cultural shift that changes the dynamics of the organisation and the way it creates value.

Many directors and officers can simply find themselves casualties of doing business in a difficult environment. Increased corporate governance is leading to more D&O exposures, and our society is becoming increasingly litigious. Claims can come from many quarters: customers, employees, competitors, suppliers, regulators or law enforcement agencies. A lot of directors assume they don’t need cover because of their limited status, yet their personal liability as a director is unlimited and they can be pursued as individuals. That means their own cash, house, pension pot or even their liberty could be at stake in the event of a claim.

It is important for businesses to take appropriate advice from their insurance broker to ensure that a Management Protection or D&O contract is considered as part of their broader risk transfer programme.

Follow us on twitter: @risksEmerging

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