The Bribery Act Does Affect You

I take it that by now you will have of the Bribery Act that came into force on the 1st July?  The Bribery Act 2010 makes it a criminal offence for an individual or commercial organisation to offer or receive a bribe to bring about or reward the improper performance of a function or activity

My concern is that if you work with or run a small organisation, most especially a charity, you may have the force sense of security that it does not apply to you.  Unfortunately, however this would not be true as the legislation applies to all organisations.

It would be easy to assume that the legislation targets the prevention of the cases of large scale corruption and bribery, involving large multinational organisations that occasionally appear in newspaper headlines and at times lead to custodian sentences for it’s top executives.  It does have a focus on this, but goes further as it also aims to stamp out facilitation payments that are often paid to low ranking officers (particularly in developing countries) to facilitate the smooth and expedient processing of a service.  This is something that most definitely has implications for any organisation that operates overseas – something that is becoming increasingly commonplace with the increased globalisation.

The challenged of this is enhanced by the fact that an organisation is now
liable for bribes paid by its agents and joint venture partners, even if made without the company’s knowledge, unless it can demonstrate that it has taken all reasonable steps to prevent such illicit payments.

The truth is even if your business is entirely focused within the UK you still need to be cautious. The legislation goes on to specify that  Corporate hospitably that is given with the intention of winning a financial advantage would become illegal.  This led to concerns that business lunches and days out with clients would become illegal.  It has, however, been clarified that Corporate hospitality is not affected by the Act as long as it is proportionate and reasonable.

It is however important to be aware of the Principals of the Act which are as follows:
*  Proportionality – their procedures are in proportion to the bribery risk the organisation faces)
* Top-level commitment from the organisation to a zero-tolerance on bribery –  and communication of this to staff, customers, suppliers etc. plus appointing a senior executive of the firm to have responsibility for bribery prevention.
* Regular risk-assessment of the nature and extent of exposure to potential external and internal bribery risks
* Due Diligence – a thorough examination of those 3rd parties acting on the organisations behalf and their trading partners
* Communication of these measures – including training so that bribery prevention policies and procedures are understood throughout the organisation, and the likelihood that all types of employment contracts will need amending to refer to bribery in the context of gross misconduct/termination.
* Monitoring and review all of the above principles regularly

In order to minimise the risk of falling foul of the Act, companies should put in place:

*  Whistle-blowing procedures (setting out how staff raise concerns about bribery and request advice and support)
* Prevention policies to cover financial and commercial controls (invoices, remuneration)
* Prevention policies to cover rules on gifts, hospitality (a reasonable amount of corporate hospitality is still permitted), promotional spend/sponsorship (including charitable donations)
* Procedures on recruitment (including work experience) and discipline/grievance that include anti-bribery measures
* Details of how anti-bribery measures will be enforced.

Top Tips to Avoid Bribery
How to Reduce the Probability
–    Have a clear framework for tenders and negotiations, ensuring these include anti-bribery clauses
–    Make sure your negotiation team has a clear mandate and the customer knows that the team won’t exceed it
–    Identify decision-makers in the procurement organisation to determine where a solicitation could come from.
–    Involve banks and export credit agencies in anti-bribery initiatives.
How to react if a demand is made
–    Inform your management and define an appropriate strategy (for example, changing the negotiation team)
–    Go back to the soliciting person with a witness and reaffirm your willing to proceed as normal, ignoring the solicitation.  If the solicitation is reiterated.
o    Inform the person that it is not acceptable
o    Threaten to back off from the bid and go public
o    Set a deadline for proceeding in a normal manner
–    Tell a senior person in the customer organisation that you believe that you have been asked for a bribe
–    If sufficient evidence is available, go to the national-anti-bribery body.

Source: Resisting extortion and solicitation in international transactions. October 2010

Copyright 2011. This document is the specific intellectual property of Susan Popoola. Content may not be reused or reproduced without the specific permission of the owner or a reference to the source. Opinions may be generated

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