With the advent of the Bribery Act, employers need to be much more cognisant of the effect that this legislation can have upon its management of its employees, and its business generally. The legislation can impact upon the employment relationship in a number of areas.
The Bribery Act prohibits the giving or receiving of bribes, both in the UK and overseas. Prior to the Bribery Act coming into force a company could only be found liable for bribery offences committed by its employees if those employees were sufficiently senior for their actions to be attributed to the company itself. Now, under the Bribery Act, a company can be held liable for the offences of any employee acting in the course of his employment, regardless of seniority and regardless of whether those more senior in the organisation were aware of the offending conduct.
From a practical perspective, the first thing that employers should do is assess whether the business is exposed to bribery risks and identify those departments and personnel who are most likely to be exposed to such risks. All employees need to be made aware of what bribery is, how to recognise it and what to do when confronted with such conduct.Employees in medium to high risk areas need to receive comprehensive training and practical guidance on how to identify and eliminate corruption risks.
It is of paramount importance that the employer makes its employees aware of the legal position, the relevant company policies and procedures, the standards of behaviour expected from employees, and the disciplinary procedures which will apply should employees be implicated in breach of the legislation, in any way. Employees should be required to certify compliance with the company’s anti-bribery policy, and acknowledge that they have attended training as provided by the company.
In the event that an offence is discovered or suspected, the employer will need to act with speed to commence an internal investigation. It is imperative for bribery to be investigated properly: a company can face unlimited fines if found guilty of bribery offences and employees face unlimited fines and imprisonment for up to 10 years. The primary considerations are to ensure that 1) the offending conduct is immediately stopped; 2) the investigation is protected by privilege; 3) evidence is preserved and collected e.g. emails, financial records and other documents; and 4) implicated employees and others with relevant information are questioned (again while maintaining privilege).
If an employee is implicated, the employer will need to decide what steps it wishes to take, including whether or not to suspend the employee. The main difficulty for the employer in this situation is that the standard disciplinary procedure does not fit these circumstances. Periods of suspension are, generally speaking, going to be too short, and if a breach is proven, the outcome is more than likely to amount to termination of employment. If termination does occur, then this will serve to antagonise the employee who is also then no longer under the employer’s control. A combination of these factors may well impede the investigatory process, as the employer may need the employee to be “on-side” in order to assist with the investigation.
As such, it is advisable for the company to consider whether it should have a separate employment policy and procedure which deals with breaches of regulation generally, as this may then enable the employer to have periods of suspension which are longer than may be strictly recognised in a standard disciplinary process, and under the terms of the ACAS guidelines. As a result, the employer will maintain control over the employee, the employee continues to receive payment, and the employer can then decide what action, if any, needs to be taken once the internal investigation has been completed.
Depending on the outcome of an internal investigation, a company may consider it necessary to report itself to a regulatory body, such as the Serious Fraud Office. The company’s handling of implicated employees will be a factor that is scrutinised by the regulator, so it is important to consider all steps taken with such employees from this perspective. There is an expectation that implicated employees will be disciplined and where appropriate, have their employment terminated, in order to demonstrate the company’s commitment to fostering a culture of compliance.