The updated legislation includes new offences, so employers should prepare now for its implementation later this year.
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 law covering acts of bribery has developed piecemeal via legislation and case law. Given that some of the law is more than 100 years old, it is no surprise that reform has been debated for more than a decade, not least to combat increasingly sophisticated bribery schemes.
The Bribery Bill was eventually 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 October), subject of course to the government.
The Act provides for four 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, both the company and its directors could be subject to criminal sanctions, including fines.
However, there is some light at the end of the tunnel for businesses, as the Act contains a defence (at section 7(2)) under which the company could escape liability if it can show that it had in place “adequate procedures” designed to prevent those persons performing services on its behalf from committing bribery.
As such, 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.
What constitutes adequate procedures to prevent bribery is the key question, but the answer is not currently clear. Under clause 9 of the Act, the government is obliged to issue guidance “about procedures that relevant commercial organisations can put in place to prevent persons associated with them from bribing” (section 9(1)). Bearing in mind that the Act is due to come into force later this year, there is concern as to whether any guidance will be issued far enough in advance for companies to digest it, review policies and make necessary changes. There is no firm date for the guidance being issued.
The guidance will be designed to be flexible, to ensure companies can adopt the compliance approach best suited to their business. But a December 2009 letter from Lord Bach (then parliamentary under secretary of state) made the following suggestions on what adequate procedures would involve:
- A company’s board of directors (or similar body) should take responsibility for establishing an anti-corruption culture and programme.
- A senior officer should be responsible for overseeing the anti-corruption programme.
- There should be a clear and unambiguous code of conduct including an anti-corruption element, and procedures should be established to assess the likely risks of corruption arising in a company’s business.
- Employment contracts should expressly state penalties relating to corruption.
- There should be a gifts and hospitality policy to monitor receipt of gifts and entertainment.
- Anti-corruption training should be provided.
- There should be financial controls to minimise the scope for corrupt acts to be committed.
- There should be appropriate whistleblowing procedures to enable employees to report corruption in a safe and confidential manner.
Although the guidance has not yet been published, employers can still take steps to prepare for the Act coming into force. They can review their existing procedures, decision-making processes and financial controls. If these are not already in place, they should ensure they are brought in, and provide any necessary training.
The Act will not change the disciplinary process that would need to be followed to investigate any alleged act of corruption before a disciplinary sanction is imposed, so the company should follow its own procedure or fall back on the Acas code on disciplinary and grievance procedures.
Paul Gaff, partner, Thomas Eggar