The Bribery Act 2010 comes into force today, 1 July 2011. Readers of this blog will know that it has been a long process to get to today: see for example my blog in March of this year.
The Act consolidates existing laws on bribery and creates four distinct offences. Under the Act, it is an offence to bribe another person, to receive a bribe or to bribe a foreign public official. It is also an offence for a commercial organisation to fail to prevent bribery, the so-called “corporate offence”. Please see our article on the Act generally here.
From an employment law perspective, the corporate offence is of interest. As explained in our article, businesses will have a defence to the corporate offence if they can prove they had adequate procedures in place. Employers therefore have to ensure their policies and procedures are compliant.
The following are issues that employers should consider:
- Employers may wish to consider publishing an anti-bribery policy, setting out a zero-tolerance approach;
- Employers should revisit their policies on gifts and hospitality. The approach here should be reasonable and proportionate, with industry norms being considered. Following on from this, any policy on expenses should be considered to ensure employers are aware of how much is being spent and for what purpose;
- Similarly, policies on political or charitable donations and sponsorships should be reviewed;
- Any policy which rewards excessive risk taking should be abolished. Employers should carefully consider policies in relation to bonus and commission schemes, to ensure there is no incentive for an employee to commit an offence under the Act;
- Employers could consider carrying out more in-depth background checks on potential employees. Recruitment processes should be reviewed;
- Inductions should include information about anti-bribery procedures. New employees should be made aware of the organisation’s procedures. Training sessions could be provided if appropriate;
- It may be sensible, if a risk assessment has found that there is a risk of bribery or corruption to an organisation, to specify in employees’ contracts that they will comply with the organisation’s anti-bribery procedures;
- It is suggested that employers should update their disciplinary rules with a view to making it clear that any breach of the anti-bribery policies may be deemed gross misconduct;
- On a similar note, whistleblowing policies should be up-to-date. Any employee concerned about a colleague’s actions in relation to bribery should feel able to report his or her concerns in the appropriate manner; and
- Any policy updated or put in place as a consequence of the implementation of the Act should be proportionate. Employers must ensure that policies are not discriminatory in any way. Some countries are deemed to be of a higher risk than others, but this should not result in employers discriminating against nationals of those countries.
The Government has been keen to stress that proportionality is the key here. Employers should take reasonable, proportionate steps to comply with the new legislation.