...The Bribery Act 2010
A business entity whether it is a company, partnership, limited liability partnership or sole trader can commit an offence under the Act if an employee, officer, consultant or agent of the business pays or receives a bribe.
Many companies and businesses provide hospitality, entertainment, gifts or pay expenses in order to market and promote their business and it can sometimes be difficult to identify where marketing and business development ends and bribery begins. Hospitality and entertainment are part of business culture but in some situations can go beyond that, for example, where the extent of the benefit received, or paid, whether it is conferred outright or in smaller increments, creates an obligation or is used to influence a commercial decision.
The Offence:
A person commits an offence if they directly or indirectly ask for, promise, receive or agree to a bribe as a consequence of which they or someone else acts in a manner or does some act which broadly, improperly affects, changes or influences the outcome of an official or commercial decision or activity. The reward offered or received does not have to be financial.
Commercial entities may commit an offence if they or their employees or agents commit bribery in order to obtain or give a commercial advantage. Businesses have legal liability for the conduct of their employees, consultants, agents and contractors across the world, and may face prosecution where an employee or agent commits bribery. Businesses falling foul of the Act will be liable to an unlimited fine and the level of fine imposed will reflect the level of the wrongdoing.
The Defence:
It will be a defence to a charge of bribery that a commercial entity has in place “adequate procedures” to prevent bribery. How comprehensive this is will depend very largely on the size and nature of the commercial entity, particularly bearing in mind its culture of corporate hospitality and marketing. A formal written business policy stating the commercial entity’s commitment not to pay or accept bribes is a fundamental starting point for all businesses. Training should be considered especially in terms of educating employees, associates and agents as to what constitutes bribery under the legislation.
Action Plan:
All commercial entities should consider the following:
1. Conducting a risk assessment of the business’s susceptibility to bribery and to identify potential problem areas
2. Ensuring that the business has a clear anti-bribery policy and that this is recorded in the office manual/staff handbook and any contractual arrangement with agents and/or contractors
3. Regular reminders to staff, agents, contractors and suppliers of the business’s anti-bribery policy
4. Ensuring that all personnel within the business’s control, in particular its employees and agents, are trained to the appropriate level in anti-bribery policy
5. Amending disciplinary procedures and or employment contracts to reflect the business’s anti-bribery policy
6. Carrying out due diligence procedures when entering relationships with staff, agents, contractors and joint venture partnerships to assess vulnerability and susceptibility to bribery
7. Keeping clear accurate records of corporate spending on entertainment and hospitality, particularly the expense accounts of individuals
8. Larger organisations should consider appointing an individual within the organisation to have responsibility for implementing and managing anti-bribery policies and to be the reporting officer whom staff should approach for guidance when potential bribery issues arise
Further Information:
If you would like to discuss anything that you have read in this information sheet or need advice about putting policies and procedures in place to protect your business please speak to Anthony Smith or Pamela Horobin.
Telephone 01229 580 956
Whilst we have made every effort to ensure the accuracy of the information given in this information sheet, this information is provided for general information purposes only and no warranty or representation is made as that the information is completely free from errors or inaccuracies. Specific legal advice on this topic will vary according to individual circumstances and should be sought in every case. Any advice given in this sheet does not constitute legal advice and shall not without our express written consent in each individual case be relied upon by any person