| The Bribery Act 2010 |
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The Bribery Act is due to come into force later this year therefore employers should start to prepare. Bribery – the offer or acceptance of a reward to persuade someone to act dishonestly and/or in breach of the law – can be an expensive business. Companies have faced fines in excess of £100m as a result. The Bribery Bill was placed before Parliament in November 2009. It received Royal Assent on 8 April 2010, and is due to come into force later this year - most likely in October. The Act provides for the following bribery offences: • Bribing – the offering, promising or giving of an advantage. • Being bribed – requesting, agreeing to receive or accepting an advantage. • Bribing a foreign public official. • The "corporate offence", where a commercial organisation fails to prevent persons performing services on its behalf from committing bribery. The new corporate offence under section 7 of the Act will be of most interest to employers. A company will be guilty of this offence if a person who performs services on behalf of the organisation (an employee, worker or consultant) bribes another person, intending either to obtain or retain business for the company, or to obtain or retain an advantage in the conduct of the company's business. The offence can be committed in the UK or overseas. If a company is found guilty of corporate bribery, it is punishable by an unlimited fine. A bribery conviction can have wider implications for both individuals e.g. director disqualification, and business e.g. blacklisting from public procurement exercises. The company can defend itself against liability if it can prove that it had ‘adequate procedures’ in place to try to prevent any incidents of bribery. If it is proved that a bribe was paid on a company's behalf with the intention to obtain or retain business for the company, an offence will have been committed for which the company will be liable, subject to the "adequate procedures" defence. The key question for employers is; what constitutes ‘adequate procedures’? Under the Act, the Government is obliged to issue guidance “about procedures that relevant commercial organisations can put into place to prevent persons associated with them from bribing”. As yet, it is not clear when this guidance will be provided and as the Act’s implementation date fast approaches this is causing much concern. So what can employers do now? • Carry out risk assessments and audit policies and practices to assess the nature of, and to minimise the compliance risks thrown up by the Act, particularly in relation to the use of third parties such as agents, distributors and sub-contractors. • Ensure that any corporate code of conduct or ethics code reflects the Act as well as other relevant law. • Directors and senior management should take a lead on implementing and maintaining an anti corruption culture. • Brief employees about the Act and train staff on existing and new procedures. • Check and update detailed procedures on gifts and hospitality, facilitation payments and vetting of external agents and suppliers. |