The Bribery Act 2010 creates new criminal offences and as well as individual offences of bribing, being bribed or bribing a foreign official, there is a corporate offence which can apply to commercial organisations carrying on a business, or part of a business, in the UK.
Under the Act, if an "associated person" (such as an employee or agent) of a company pays a bribe (whether in the UK or overseas), the company will be liable for the offence of "failure to prevent bribery" unless it can prove that it had "adequate procedures" in place to prevent the conduct. In other words, the organisation is given the opportunity to demonstrate that any improper conduct was an isolated incident rather than an institutional failure.
The definition of "associated person" is intended to be broad. Nevertheless, the corporate will only be liable where the associated person acted with an intention to obtain or retain business (or a business advantage) for the corporate, even if the corporate may benefit indirectly from the bribe. The official guidance emphasises that this is an important limiting factor.
The guidance on "adequate procedures" takes the form of six principles that are intended to guide corporates in deciding what bribery prevention measures to put in place. Policies will be important but should be supported by effective implementation, including in relation to recruitment and training. There must be top-level commitment to preventing bribery, corporates must periodically assess the bribery risks associated with their business and operations, and they should understand with whom they are doing business. Procedures should be regularly reviewed and appropriate audit and financial controls put in place.
One area of concern for employers is the issue of hospitality. Here the guidance offers considerable reassurance about the impact of the Act. It makes clear that the Act is not intended to prohibit businesses from taking clients or customers to Wimbledon, the Grand Prix or Twickenham; three specific examples given to illustrate that the Act does not prohibit "bona fide hospitality and promotional, or other business expenditure which seeks to improve the image of a commercial organisation, better to present products and services, or establish cordial relations."