IT will soon be a year since the Bribery Act 2010 came into force, on July 1, 2011.
With the first prosecution and conviction under the Act having taken place in October 2011, resulting in a six-year prison sentence, it is important for employers to ensure they are aware of and understand the Act's implications and what they can do to protect themselves.
OFFENCES The Act introduced four new offences, which can be summarised as follows: ? Bribing another ? Being bribed ? Bribing a foreign public official, and ? The failure of a commercial organisation to prevent bribery by a person associated with it, for its benefit.
The final offence (which we shall call the corporate offence) will be of most interest to employers because commercial organisations (including companies and partnerships) will be guilty of an offence if they fail to prevent persons associated with them from bribing another person to obtain or retain business or a business advantage for the organisation.
This covers employees, as well as subsidiaries, agents and contractors.
The offence can be committed in the UK or overseas, and liability on the part of an employer is strict, which means the employer is liable, except where they have a statutory defence based on adequate procedures.
PENALTIES There are severe penalties for breaching the Act.
Individuals face up to 10 years in prison, and, as well as unwanted publicity, commercial organisations can be subject to unlimited fines, and prevented from tendering for public-sector contracts.
DEFENCE An organisation will have a defence to the corporate offence if it can prove that it had adequate procedures in place to prevent bribery. They will include clear anti-corruption policies, staff training, auditing, monitoring and review.
The Government has published the document Guidance about procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing (the guidance), which sets out six key principles that are intended to assist commercial organisations in preventing bribery within their businesses.
These are as follows: ?1. Proportionate procedures ?2. Top level commitment ?3. Risk assessment ?4. Due diligence ?5.Communication (including training) and ?6. Monitoring and review The guidance is deliberately designed to be flexible, to ensure companies can adopt the compliance approach that is best suited to their business. …