Since the introduction of the Bribery Act 2010 (Bribery Act) which came into force in July 2011 a number of our clients have contacted us to ask whether or not they need to concern themselves with this and whether they need any policies in place. The answer to both of these questions is yes. The Bribery Act is an important piece of legislation and caries some very serious penalties including up to ten years in prison and a hefty fine.
There are four main offences under the Bribery Act, simply put these are:-
- Giving a bribe;
- receiving a bribe;
- bribing a foreign official; and
- failing to prevent bribery by an associated person for an organisations benefit (essentially failing to prevent an employee or person associated with your company from complying with the Bribery Act).
These are very wide and companies must ensure that they comply with the Bribery Act and have specific procedures in place to protect their position.
Essentially if a bribe is given or received (and in some cases offered) in order to try and retain or obtain business then you will be in breach of the Bribery Act. There can be a fine line between corporate hospitality and gifts and bribery and companies must ensure that they are within the realms of acceptable practice.
Where we expect to see issues arising is in respect of sections 7, 8 and 9 of the Bribery Act relating to failure of commercial organisations to prevent bribery and failure of the adequate procedures defence. Under section 7(1|) the legislation sets out that a commercial organisation will be guilty of an offence if a person associated with that organisation commits an offence, either in the UK or abroad. However if the organisation in question can show that they had in place adequate procures which were specifically designed to prevent bribery then they will have a defence.
A crucial element of “adequate procedures” is having a comprehensive anti corruption and bribery policy in place which is communicated to all staff and people associated with the company it is also a good idea to offer training and ensure that a dedicated person in higher management has responsibility for this, regular auditing of compliance and whistle blowing procedures. It is also advisable to ensure that any contracts you have with third parties also contain anti bribery provisions.
We also advise our clients to carry out due diligence on any third party with whom they contract to ensure that they are complying with the legislation. When drafting a policy is important to consider the industry in which the relevant business is operating and also to highlight potential areas of risk that their staff need to be aware of. If a business is operating in different jurisdictions it is sensible to set out the different risks in each jurisdiction.
We also suggest that a director or senior manager is given responsibility for training of staff in this area of law and being available to them if they have any queries or concerns.
We have experience in drafting and advising on Bribery Act policies and what procedures should be in place to ensure compliance. Get in touch to find out how we can help.
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