Having a robust anti-bribery and corruption policy

What is bribery and corruption in business and why is it important to have an anti-bribery and corruption policy in place? Paul Chamberlain from the JMW Solicitors Employment team outlines how to implement an anti-bribery and corruption policy and communicate it effectively to employees.

If there is a risk that someone who works for you or on your behalf might be exposed to bribery, you should have an anti-bribery policy.

What counts as bribery?

What counts as bribery

A bribe is an inducement or reward offered, promised, or provided in order to improperly gain a commercial, contractual, regulatory, or personal advantage that may constitute an offence under the Bribery Act 2010. It is illegal to give or offer a bribe, receive, or request a bribe, or to bribe a foreign public official. A business could also be liable under the Act if it fails to prevent bribery by an associated person for the benefit of the business.

The Bribery Act 2010

Implementing an anti-bribery and corruption policy could help to protect your business and ensure that you do not incur liability under Section 7 of the Bribery Act 2010 (BA 2010). The BA 2010 was implemented on 1 July 2011 and a failure to implement adequate procedures may result in criminal and civil liability and penalties for businesses and individuals.

A business is guilty of an offence if a person associated with the business bribes another person, with the intention of obtaining or retaining business or a business advantage. "Associated person" is defined widely to include people who perform services for, or on behalf of, your business regardless of their capacity.

An associated person may include your:

Employees
Agents
Subsidiaries
Joint venture partners

The offence can be committed in the UK or overseas and there is no requirement to show fault on the part of the business.

The BA 2010 provides a defence if a business can show that they had adequate procedures in place, with the intention of preventing bribery.

What does an anti-bribery and corruption policy do?

What does an anti-bribery and corruption policy do

The purpose of an anti-bribery and corruption policy is to prevent bribery and corruption by having the adequate procedures to monitor and identify where and when it may occur. Additionally, a policy should ensure that the business responds appropriately if bribery or corruption is uncovered. This could include disciplining staff, reviewing procedures, and avoiding or mitigating criminal liability.

The policy should, for example:

Explicitly prohibit all forms of bribery and corruption;
Detail how the business will manage the risk of bribery and corruption;
Explain why it is necessary to prohibit bribery and corruption (including moral reasons alongside the legal risks);
Provide guidance on how the business should conduct its’ affairs in a way which ensures that it does not engage in or facilitate any form of bribery or corruption;
Set out clear rules and policies including on matters such as giving and receiving gifts or hospitality, for example;
Set out rules on avoiding conflicts of interest; and
Set out procedures for whistleblowing

The policy should be published internally and externally.

Enforcing an anti-bribery and corruption policy effectively

Principle 2 of the Ministry of Justice guidance for businesses on the Bribery Act 2010 notes that it is imperative that those at the top of the business are committed to preventing bribery. They should therefore work to establish a culture where bribery is never acceptable.

Leadership statement of support

It is advisable for the leader of the business to make a statement of personal support for the policy, emphasising the fact that it is supported at the highest level.

The statement of support could include, for example:

A commitment to carry out business fairly, honestly, and openly;
A commitment to zero tolerance towards bribery;
An explanation of the consequences of breaching the policy for both employees and other associated persons;
A statement of the business benefits of rejecting bribery and corruption;
The names of key individuals and departments involved in bribery and corruption prevention procedures; and
Reference to any collective action against bribery in, for example, the same business sector

The statement should be published on the website of the business and communicated to subsidiaries and business partners.

Training senior staff

It may also be beneficial to select and train senior managers to lead anti-bribery work. They could, for example:

Help to create and promote the policy;
Endorse all bribery prevention publications and training;
Raise awareness and encourage and facilitate dialogue throughout the business; and
Provide feedback to the board (or equivalent) on compliance

It is also advisable to appoint a senior manager to be responsible for ensuring that the business has adequate anti-bribery and corruption policies and procedures and also that they are complied with.

Communicating to employees

It is also important to ensure that your employees are all aware of and accept the anti-bribery and corruption policies and procedures and also that they understand the consequences that a breach could carry.

Written by Paul Chamberlain

As head of JMW’s Employment team, Paul has 25 years’ employment law experience - law relating to recruitment, advising and providing training on employment status issues, Agency Workers’ Regulations, GLAA, Working Time Regulations and industry-specific regulatory compliance.