The SFO has devised its own guidance for considering how to deal with organisations that continue to make "small" facilitation payments after 1 July. 

Our sources at the SFO have informed us that the SFO will be looking to see:

  1. whether the company has a clear issued policy regarding such payments;
  2. whether written guidance is available to relevant employees as to the procedure they should follow when asked to make such payments;
  3. whether such procedures are being followed by employees;
  4. evidence that all such payments are being recorded by the company;
  5. evidence that proper action (collective or otherwise) is being taken to inform the appropriate authorities in the countries concerned that such payments are being demanded;
  6. that the company is taking what practical steps it can to curtail the making of such payments.

There remains a number of grey/ challenging areas.  Where is the line between "small" payments and payments which the SFO would condemn?  How many small payments collectively amount to a significant breach of the Bribery Act?  If you have a zero tolerance policy, but payments are still being approved, what message is being given to your employees and business partners?

For those organisations that are doing their best to avoid making facilitation payments, but are finding it difficult to stop making them altogether, this insight into the SFO's thinking will offer some limited breathing room.  However, the clear message from these six points is that the SFO will be expecting to see a positive approach by organisations towards the goal of eradicating such payments from their operations.

Certainly the suppliers of facilitation payments can make efforts to avoid being in situations where they are susceptible to demand for payments, but long term eradication must surely rest as much on inroads being made into the demand side itself.  Organisations are encouraged to take collective or other action to inform authorities that demands are being made, but pressure also needs to be applied at government level.  Will we see the UK Government supporting British organisations to take a stand against facilitation payments by working with foreign governments to tackle the issue of demand?

In the meantime, it will be interesting to see in 2 years time whether the SFO's tolerance with respect to facilitation payments has changed.