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Anti-bribery Policies
The Bribery Act 2010 came into force with effect from 1 July 2011 and has potentially far reaching implications on individuals and businesses in the UK and elsewhere. The Act abolishes the offences of bribery at common law and the statutory offences in the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906. The main policy driver behind the Act is the recognition of the fact that bribery is a global problem which corrupts ethical values, undermines democracy and the rule of law and poses very serious threats to sustained economic progress in developing and emerging economies. The Act seeks to provide a new legal framework by which bribery can be addressed in a meaningful way.
London Registrars and the Act
The prevention of bribery is a hallmark of good corporate governance. Bribery is bad for business, distorts free markets and can bring about reputational damage which can be very damaging for a company. As company secretaries we advise our clients that they must conduct bribery risks and ensure they have in place policies and procedures to minimise the risk of bribery. Not taking the Act seriously could result in serious consequences, such as investigations by the Serious Fraud Office (SFO) and the resulting management time and costs spent responding to such an investigation. Other regulators could then initiate investigations for internal control failures, poor corporate governance, etc. and you could be under obligation to report wrongful payments in company accounts.
There are a number of steps we advise our clients to take in order to prevent bribery effectively:
Preparation of anti-bribery policies: This is likely to be a wholly new policy for most employers. It should set out a ‘zero tolerance’ approach to bribery, and make it clear that disciplinary action will be taken against employees for breach of the policy. Employers should also undertake a thorough corruption risk assessment of their business to establish the likely risks of corruption arising. Depending on the nature, size and complexity of the business of the organisation, it may be necessary to put in place procedures to implement the anti-bribery policy.
Whistleblowing policy: It is important that organisations have effective whistleblowing policies and procedures in place to allow employees and workers to report wrongdoing (including bribery) in a safe and confidential manner and to offer them adequate protection from reprisals. Where whistleblowing policies are already in place, employers should consider extending the scope of their policies to include third parties such as contractors, consultants and casual/agency staff, given the broad range of people who may be ‘associated’ with the organisation in the context of the Act. In addition, employers should consider amending their policy to specifically mention reporting acts of bribery in order to emphasise the importance that the employer attaches to preventing bribery.
Contract of employment: Employers should consider inserting express clauses prohibiting employees from paying or accepting bribes and placing employees under an obligation to report bribery, cross referencing reporting procedures, i.e. the whistleblowing policy. If commission/remuneration/incentive arrangements could also be interpreted as potentially incentivising bribery, there could also be cross-reference there to the anti-bribery policy.
Contracts with contractors and consultants may need similar amendment.
Disciplinary procedure: The disciplinary procedure can be amended by citing making or receiving a bribe as a gross misconduct offence, rendering the employee potentially liable to summary dismissal.
Expenses, gifts and hospitality: Genuine hospitality or similar business expenditure that is reasonable and proportionate is not caught by the Act. Employers should consider placing tighter financial controls on expenses incurred while entertaining business contacts and on promotional expenses. They should also introduce a clear gifts and corporate hospitality policy and then monitor the receipt of gifts, hospitality and entertainment.
Training: Training the workforce on the terms of the anti-bribery policy and the relevant anti-corruption procedures will be essential. Larger businesses may also wish to consider offering anti-bribery training to business partners.
Recruitment: Organisations should conduct the appropriate level of due diligence checks before engaging employees, as well as appraise and continuously monitor employees to the level that is appropriate.
Should you wish to discuss anti-bribery or whistle-blowing policies in more details, please contact Peter Driver on 020 7608 0013 or send a contact email and we will get back to you.
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