Law guide: Employment

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The Bribery Act

The Bribery Act

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Contents

The Bribery Act 2010 replaced older Acts that similarly criminalised bribery and also imposed new obligations on employers. Both commercial organisations and the individuals running them can be prosecuted under the Bribery Act.

The new criminal offences

Bribing another person

Directly or indirectly giving, promising or offering a financial or other advantage to a person:

  • with the intention of inducing or influencing the recipient to perform their public or business functions or activities improperly (e.g. not acting impartially; acting in breach of trust), or to reward that person for having already done so
  • with the knowledge or belief that by accepting it, the person has improperly performed their public or business functions, duties or activities

Being bribed

Requesting, agreeing to receive or accepting a financial or other advantage:

  • with the intention of (either personally or through a third party) performing public or business functions or activities improperly, or as a reward for having already done so
  • with the knowledge or belief that by accepting it, you have improperly performed your public or business functions, duties or activities

Bribing a foreign public official

Giving, promising or offering a financial or other advantage to a 'foreign public official' (FPO) or to a third party at their request, with the intention of influencing their performance of their official functions to obtain or retain business or a business advantage, unless the country's written law permits or requires the FPO to be influenced by the financial or other advantage.

Failure by a commercial organisation to prevent bribery

A 'commercial organisation' that carries on business or part of a business in the UK (wherever in the world it is incorporated or formed) will have committed an offence if it fails to prevent an 'associated person' committing either '1' or '3' (above), unless it can show it has 'adequate procedures' in place to prevent the 'associated person' from bribing.

Understanding key terms

Commercial organisation

This means public or private organisations that engage in commercial activities, and includes charities and other not-for-profit organisations.

Foreign public official

This is any elected or appointed person outside of the U.K. who holds a legislative, administrative or judicial position in government; performs public functions in local government/municipal councils; or holds a position in public state owned agencies or enterprises. This will include local and national politicians and civil servants and all workers that are employed by the state, such as immigration, customs, tax and court officials, military and emergency service workers, and directors of state-owned companies.

Associated person

This is a person who performs services for you or on your behalf. It will include your employees, workers, contractors, agents, suppliers and possibly a subsidiary, members of a joint venture company or the contractual parties of a joint venture. It may not include suppliers who are only selling goods or in circumstances where the provision of the services involves several different entities (such as where there are a series of subcontractors over which you do not have any control). Ultimately, whether or not a person is providing you with services will be determined by the relevant circumstances.

Adequate procedures

This is not defined in the Bribery Act, but there is government guidance on what this may involve. See the article 'adequate procedures '.

Jurisdictional reach of the UK courts

Bribing, being bribed & bribing a foreign public official

An individual can be prosecuted for committing any of the first three offences if it was committed in the UK. If committed through a business, then a director, company secretary, manager or partner who is considered the 'direct mind or will' of it could be prosecuted. If committed abroad, then the offender would need to have a close connection with the UK, such as being a British national, ordinarily resident in the UK or being incorporated in the UK or in a Scottish partnership.

Failure by a commercial organisation to prevent bribery

The courts can prosecute any commercial organisation incorporated or formed in the UK, or even elsewhere, provided they carry on a business or part of one within the UK.

Penalties

An individual found guilty of one of the first three offences may be liable to a maximum of 10 years in prison and/or an unlimited fine.

An organisation found guilty of the fourth offence may be liable to an unlimited fine.

What is of significance to employers?

Failure by a commercial organisation to prevent bribery

The offence of failing to prevent bribery by an associated person potentially affects all employers who undertake business in the UK. Employers should perform a risk assessment to determine the likelihood of exposure to bribery and corruption. Those at risk need to put preventative policies and procedures in place.

Facilitation payments

Facilitation payments are small bribes made to facilitate routine government actions, such as tipping a public official so that they perform their duties within a reasonable time.

Under the Bribery Act all facilitation payments are strictly illegal. This may cause problems for businesses operating in foreign countries in which facilitation payments are regarded as the normal way of getting things done.

Hospitality expenditure

Hospitality expenditure (e.g. entertainment or gifts) may be regarded as a bribe. Employers should ensure that such expenditure is made in good faith, for legitimate business reasons (e.g. a PR exercise) and is proportional to the type and cost of hospitality usually provided in their industry sector.

Adequate procedures

Commercial organisations can defend a charge of failing to prevent bribery by an associated person, if they can show that 'adequate procedures' were in place to prevent it. The government has published guidance on what this means, formulated around six non-prescriptive (flexible) principles. The guidance stresses that it is not a 'one-size fits all document' and that departing from the principles will not necessarily mean that adequate procedures are not in place, which is ultimately for a court to determine in each case.

More certain guidance will emerge as prosecutions start being determined by the courts.

The six principles

The six principles, in summary, are:

1. Proportionate procedures: The policies and procedures that are adopted should be proportionate to the risks of bribery by an associated person. The risk may be affected by the nature and complexity of the business and also its size. It will most likely require an organisation to produce an anti-bribery policy.

2. Top-level commitment: A statement should be communicated to all staff from company directors or business owners, committing to a zero-tolerance attitude towards bribery with the intention of creating a culture where bribery is unacceptable.

3. Risk assessment: This should be undertaken as a first step by all businesses and involves regular, documented assessments identifying the associated persons and the internal and external risk of exposure to bribery.

4. Due diligence: This relates to checks against personnel working in roles that risk exposure to bribery. It should be undertaken when, for example, recruiting new employees, acquiring another business (where their employees will transfer to you), contracting for services from an external supplier, or entering into a joint venture with others. Due diligence may involve general research or background checks, or undertaking indirect or direct investigations/enquiries.

5. Communication (including training): All anti-bribery policies and procedures should be communicated to all internal and external members of staff and self-employed service providers. This should include informing them whenever amendments are made. Training should be provided to all new employees and agents (even if they are self-employed) and to all staff who need to be aware of the BA (such as directors, senior management who may be tasked with enforcing an anti-bribery policies and sales staff).

6. Monitoring and reviewing: The anti-bribery procedures should be regularly monitored, reviewed and improved (where possible). Particular care should be taken whenever a business takes on new business opportunities, such as entering into a new market, country or business partnership.

The risk of prosecution

The Serious Fraud Office and the Director of Public Prosecution have jointly published guidance describing the types of circumstances which may lead them to pursue a criminal prosecution. These include:

  • If a conviction is likely to attract a significant sentence/fine
  • If the bribery facilitates more serious offenses
  • If the individual is in a position of authority or trust
  • If the bribery was premeditated
  • No attempt of remedial action was taken
  • Large or repeated facilitation payments
  • Large hospitality payments that are beyond what is reasonable in the circumstances and which have been made for reasons that are not connected with a legitimate business interest

It is generally believed that large organisations will more likely be targeted for prosecution.

What should employers be doing?

Employers should:

  • Identify who from within and outside of their organisation could qualify as an 'associated person' and undertake an assessment of the risks of bribery arising in their business.
  • If risks are identified, ensure that they have anti-bribery/corruption policies and codes of conduct that are clear, accessible, effectively implemented and communicated to staff. As a precaution, it should follow the government's six principles as far as possible.
  • Ensure that their existing policies are amended to comply with the Bribery Act and/or assist in ensuring that they have adequate procedures in place. This might include amending existing policies on acceptance of gifts, reimbursement of expenses, recruitment, staff codes of conduct, whistleblowing, monitoring of communications and disciplinary procedures.
  • Amend current employment contracts or contracts with service providers so that they contain anti-corruption/bribery obligations and state the consequences of failing to comply with them.
  • Ensure all new employment contracts and contracts with service providers contain such obligations.
  • Start undertaking due diligence checks whenever instructing new agents or other service suppliers or when entering into new business relationships or markets.
  • Provide regular training regarding the Bribery Act to all staff and service providers that may require it.