Frettens Update:Prepare your business for the Bribery Act

  6th July 2011      
 Employment Law

The Bribery Act (2010) which was delayed from being put into force last year is now in effect, from the beginning of this month. It is important that businesses are ready and prepared for the new laws.

Under the UK Bribery Act, it is an official criminal offence for any individuals or companies to bribe or be bribed as well as failing to prevent bribery taking place. Individuals can face up to 10 years in prison while individuals and companies can face unlimited fines. Employers will be liable for bribery taking place by a wide range of people, including employees, agencies and volunteers, even those who they have little control over.

The defence for employers in a bribery case consists of examining the existence of “adequate procedures” put in place in order to prevent bribery. Additionally, the employer must demonstrate that a proactive approach has been taken to communicate a policy regarding bribery to employees. The following six principles have been established in order to help employers prevent bribery:

  1. Proportionate procedures — Employers must ensure that they have clear policies available to any associated person whom which the employer would be liable for in a bribery case. Employers should consider how the use of their other internal procedures may be used to reduce the risk of bribery.
  2. Top level commitment — Top level management must be openly committed to preventing bribery. Employers should establish a ‘zero-tolerance to bribery’ culture communicated to all employees and business partners.
  3. Risk assessments — Employers should be aware of all bribery risks of their sector, and keep up to date with changes and developments to the possible risks they face. A regular assessment of both internal and external risks is necessary.
  4. Due diligence — Steps need to be taken to ensure that employers know who they are doing business with and therefore better understand the possible risks. Employers should ensure that these parties have similar policies and procedures regarding bribery.
  5. Communication — Employees need to be properly trained and vetted to avoid bribery liability. Training should include how to report suspicious activity and employees must be made aware of penalties for breaching policies.
  6. Monitor and review — Commercial organisations need to decide who is responsible for monitoring and regularly reviewing anti-bribery policies and procedures. Such procedures would be reinforced by effective financial and auditing controls, picking up potential and actual irregularities.

There are many employment-related occurrences which now need to be considered in relation to the Bribery Act. The following factors should be risk assessed regarding bribery in order to avoid any unintentional breaches:

  • Bonus and Commission —Where a bonus or commission makes up a large part of an employee’s income, employers should consider reviewing schemes to ensure they do not unintentionally encourage workers to ignore anti-bribery policies.
  • Contractual Requirements — It might be a good idea for employers to consider including a specific requirement in employee contracts for workers to comply with anti-bribery policies and procedures.
  • Disciplinary Procedures — Employers should consider incorporating an anti-corruption and bribery policy into staff handbooks to make it clear under disciplinary rules that breaching may amount to gross misconduct and summary dismissal.
  • Discrimination — Employers must ensure that policies and guidance are based on hard evidence of the risk of bribery and not on stereotypes. This might be particular relevant when business involves work abroad.
  • Expenses — Expenses should be audited regularly, requiring significant evidence showing how and why money was spent for each submitted expenses claim
  • Gifts and Hospitality — A clear policy must be in place including clear guidance on the giving or receiving of gifts, including political or charitable donations or sponsorships.
  • Investigating Allegations — Any incident of a suspected breach of the Bribery Act must be investigated and documented confidentially. It is also important to ensure that no individuals involved in the investigation suffer any repercussions or detriment afterwards.
  • Recruitment — Extra background checks might want to be considered in the recruitment procedure. Additionally, anti-bribery issues training should be part of the induction process for all workers.
  • Whistleblowing — the definition of an ‘associated person’ for whom the employer is liable to prevent bribery is wider than the category of a worker who has whistleblowing rights. It should be considered whether these rights are extended to cover all ‘associated persons’ regarding bribery, or whether they make the whistleblowing policy available to all, requiring even those not protected by it to make disclosures concerning breaches of anti-bribery policy.

In order to avoid penalties for breaching the Bribery Act, it is important that all employers take time to complete thorough risk assessments, considering about all the aspects mentioned above.

For more information, take a look at the Ministry of Justice’s quick start guide for the Bribery Act (2010).

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