The Bribery Act 2010
Burnetts' Employment Law Associate Solicitor Hazel Phillips explains why The Bribery Act is a cause for concern but maybe not as much as you thought....
We all know what a bribe is and we all know that it is wrong to give or accept a bribe. Whether you think it was necessary or not, the Bribery Act 2010 (“the Act) came into force last month and strongly reinforces that message.
One of the purposes behind the Act was to modernise the existing law and employers need to ensure that they are aware of the changes and the new requirements.
The Act ‘creates’ four main offences: active bribery; passive bribery; bribing a foreign public official; and the corporate offence of failing to prevent bribery.
A person is guilty of active bribery if they offer, promise or give a financial or other advantage to another, whilst intending it to induce another person to perform improperly a relevant function or activity, or to reward a person for the improper performance of such a function or activity.
You can also be guilty of active bribery if you offer, promise or give a financial or other advantage to another person, knowing or believing that the acceptance of the advantage would constitute the improper performance of a relevant function or activity.
A person is guilty of passive bribery if they request, agree to receive or accept a financial or other advantage in any of the following circumstances:
- intending that, in consequence, a relevant function or activity should be performed improperly and the request, agreement or acceptance itself constitutes the improper performance by the other person of a relevant function or activity;
- as a reward for the improper performance by the other person or another person of a relevant function or activity; or
- where in anticipation of or in consequence of another person requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly by another person or by another person at the other person’s request or with their assent or acquiescence.
Bribing a foreign official
A person will be guilty of this offence if he or she bribes a foreign public official (“FPO”) and intends to influence him in his capacity as a foreign official. The person must also intend to obtain or retain business or an advantage in the conduct of business.
A FPO is anyone within a legislative, administrative or judicial position of any kind outside the UK or someone who exercises a public function on behalf of a country outside of the UK or a public agency of that country or an official of a public international organisation.
This offence is entirely new and is the one that has generated the most column inches because from now on a commercial organisation will be guilty of an offence if a person associated with that organisation bribes another person intending to obtain or retain business for the organisation or to obtain or retain an advantage in the conduct of business for the organisation. In addition to which, if an offence is proved to have been committed with the consent of a senior officer of the corporate body, then that person will also be guilty of an offence and liable to be prosecuted personally.
These provisions are deliberately wide in order to make it easier to prosecute a corporate entity rather than just the individuals making sure that the money or other benefits change hands. However, there is a defence to the corporate charges if the company in question has adequate procedures in place which are designed to prevent members of the organisation from engaging in bribery.
The Corporate Defence
The Ministry of Justice has published guidance for commercial organisations on preventing bribery, which shows that completing risk assessments, implementing policies and procedures to monitor and review both working practices and the effectiveness of any procedures which are put in place is going to be vital for any company looking to make use of this defence.
The guidance makes it clear though that what will be required in smaller businesses will generally be less onerous than that which is required of larger organisations. Having said that, the real driving factor will be the nature of the work in which an organisation is engaged.
Companies trading in the Middle East or in Asia may need to take bigger steps than those just dealing within North West England but as companies found guilty of the offence of failing to prevent bribery may receive an unlimited fine it is worth taking pro-active steps now to assess your risks and put policies and procedures in place to minimise whatever risks exist within your organisation. For help with these tasks, and for more information about policies and procedures, contact us on 01228 55 22 22.