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Guidance on adequate anti-bribery procedures - Expert Comments

David Reid
12th Jan 2011

The Bribery Act 2010 is due to come into force on 1 July 2011. The Act extends to all parts of the United Kingdom.

As outlined in a previous update, section 7 of the Act creates a new strict liability offence for commercial organisations where they fail to prevent bribery by those acting on their behalf.

 

However, an employer has a defence to liability in these circumstances if it can prove it had ‘adequate procedures’ in place to prevent bribery.

 

On 30 March 2011, the Ministry of Justice published guidance on what ‘adequate procedures’ would involve.

 

Proportionate Procedures

Firstly, procedures should be proportionate to the bribery risks faced by the employer and to the nature, scale and complexity of the employer’s activities. The procedures should be clear, practical, accessible, effectively implemented and enforced.

 

Top-level commitment

Secondly, there must be commitment to preventing bribery by top-level management, including, eg, the directors or owners of an employer. Top-level management must be committed to communicating the employer’s anti-bribery stance and developing the employer’s anti-bribery procedures.

 

Risk assessment

The employer must assess the nature and extent of its exposure to potential external and internal risks of bribery. The assessment should be periodic, informed and documented.

 

Due diligence

The employer should undertake due diligence in respect of persons who perform or will perform services for or on behalf of the organisation, in order to mitigate identified bribery risks.

 

Communication (including training)

Through internal and external communication, including training, the employer should seek to ensure that its bribery prevention policies and procedures are embedded and understood throughout the organisation. Internal communications should clearly state what the employer’s policies and procedures are, including the procedures to be used for raising concerns about bribery. External communications may include information on the employer’s procedures, controls and sanctions.

 

Monitoring and review

Finally, the employer should monitor and review anti-bribery procedures and be prepared to make improvements where necessary. As bribery risks to an employer will be continually changing, constant review in this regard will be necessary.

 

These principles are intended to be of general application. Companies are encouraged to put in place procedures that are proportionate to the risk of bribery faced by their particular organisation.

 

The employer’s willingness to co-operate and make disclosures in relation to any investigation by the Serious Fraud Office under the Bribery Act will also be taken into account in any decision as to whether it is appropriate to commence criminal proceedings.

 

Just Employment Law would be pleased to discuss your organisation’s requirements and to prepare an appropriate Anti-Bribery Policy in advance of the Bribery Act coming into force.

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