The Bribery Act comes into force on 1st July 2011. And, as is typical when a new piece of legislation affecting business is in prospect, your email box starts to fill up. You get offers for any number of courses that will provide, for “just” a few hundred pounds and a day of your life — an explanation of this “important new legislation”.
The Bribery Act does NOT - despite what people are saying - set up anything complicated or difficult that you have to do ... provided you have already been running your operation with a modicum of sense, and a reasonable employment contract. Normal business hospitality is not going to be made illegal! But ‘facilitation payments’, or completely disproportionate hospitality, will be a problem under the new law in exactly the same way that they were under the old law.
If you have taken no steps at all to protect your operation from corrupt practices, then the nudge that the new Act may give you to sort this out will not go amiss. But if you have nothing in place, don’t just ‘fix’ the bribery issue — look at how corruption of any form might affect your activities, and how to guard against it. As always, let your business needs drive what you do ... don’t let legal changes distort your business priorities.
The Ministry of Justice has issued straightforward guidance about how the new Act will operate. [But do remember, “guidance” is not the law - so take it with a bit of a pinch of salt – check out our earlier blog.]
In a nutshell:
- your organisation can be liable for failing to prevent a person from bribing on your behalf
- solution: consider whether there is actually a risk that this will happen, and where these risks may arise
- if a bribe is made on your behalf, you will have a defence to a prosecution if you can show you had adequate procedures in place to prevent bribery
- solution: once you have identified actual risk areas in your operation, consider how you can best put procedures in place to prevent bribery occurring.
- if you do need to put procedures in place, they should be proportionate to the risk
- solution: for most businesses, you will not need extensive written policies or special processes.
For many organisations, all that will be needed is a short addition to the employment contract or employee handbook. For any organisation that already has an effective “ethics” policy in place, it is quite likely that nothing additional will be needed at all.
But the trick is to do the job in the right order.
Start with the risk assessment – which, as always, is best committed to paper so that you can prove later on that you did it.
Then, if (and only if) the risk assessment shows you that it’s necessary, put in place relevant and appropriate new prevention procedures and documentation.
Many companies will need to add precisely nothing to what they already have in place at the moment!
Christopher Head is a barrister and director of employment law specialists Irenicon Ltd.
Member since: 23rd January 2012
My passions in life are employment law, argentine tango and gardening; not necessarily in that order.
I love improvising a solution against complex rules and making it look good - whether it is in business...