Blake lapthorn Bribery Act Thames Valley HR forum - 13 september 2011


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Blake lapthorn Bribery Act Thames Valley HR forum - 13 september 2011

  1. 1. Thames Valley HR forum Bribery Act 2010 Nicola Diggle Blake Lapthorn
  2. 2. How Corrupt is UK PLC? Transparency International Corruption Perception Index 180 Countries Ranked – low score is good UK ranked 11th 2005 (better) UK ranked 20th 2010 (worse)
  3. 3. What does the Bribery Act cover? Prevents the giving or receiving of a financial or other advantage to encourage or reward the improper performance of functions or activities The Act prohibits: – Bribing – Being bribed – Bribing a foreign public official; and – The "commercial organisation offence" of failure to prevent bribery In force with effect from 1 July 2011
  4. 4. Penalties for breach of the Act Individuals face up to ten years imprisonment Commercial organisations (including partnerships) risk: – an unlimited fine – ban on tendering for public contracts – directors, managers and company secretaries can also face individual liability (for consent or connivance)
  5. 5. Main Features of the Bribery Act 2010General Offences - Bribing or Receiving a BribePaying or offering to pay a bribeRequesting or receiving a bribe
  6. 6. Main Features of the Bribery Act 2010 ExamplesBribing a planning officer to grant you planningpermissionPlanning officer asking you for a reward for grantingpermissionSometimes making the offer itself is enoughCorporate hospitality is ok provided it is reasonableand proportionate
  7. 7. Main Features of the Bribery Act 2010 Bribing of Foreign Public Officials (FPO)Cannot bribe overseas officialsLocal written laws that permit investment in the localeconomy or paying for training is acceptableFacilitation payments are prohibited unless permittedby local lawSFO will prosecute if payments are routinely made
  8. 8. Main Features of the Bribery Act 2010 Territorial JurisdictionRules relating to the two general offences and bribinga Foreign Public OfficialOffence committed if any act or omission takes placein the UKOffence committed if the person has a “closeconnection” with the UKDefined as a UK citizen, resident, company orScottish Partnership
  9. 9. Main Features of the Bribery Act 2010Corporate Offence of Failing to Prevent BriberyA relevant commercial organisation (C) is guilty of anoffence if a person (A) associated with C bribesanother person intending to obtain or retain:business for Can advantage in the conduct of business for CRelevant commercial organisation :UK company or partnership doing business here orelsewhereOverseas company/partnership carrying on businessor part of business here
  10. 10. Main Features of the Bribery Act 2010Corporate Offence of Failing to Prevent BriberyA relevant commercial organisation (C) is guilty of anoffence if a person (A) associated with C bribesanother person….A person is associated with C (disregarding anybribe under consideration) if A performs servicesfor or on behalf of CCan be an agent, subsidiary or parent company butwill depend on all the relevant circumstancesAn employee of C is presumed to be providingservices for C
  11. 11. Main Features of the Bribery Act 2010Corporate Offence – Adequate Procedures Defence C has a defence that it had in place adequate procedures designed to prevent persons associated with C from undertaking such conduct Adequate procedures not defined in the Act but Guidance now published to assist companies Objective is to support businesses in determining the sorts of bribery measures they can put in place CBI has lobbied hard to get better clarification from Government on the Act
  12. 12. Main Features of the Bribery Act 2010 Guidance on Adequate ProceduresSix principles which underpin Bribery Prevention:Risk Assessment is first thenTop Level Commitment )Due Diligence )Proportionate Procedures ) Risk MitigationCommunication and training )Monitoring and Review )
  13. 13. Six principles First – Undertake a Risk AssessmentYou must regularly and comprehensively assess thenature and extent of risks relating to bribery whichyou are exposedNo “one size fits all”Skills of persons performing risk assessmentInternal risks - unawareness of staff of risksExternal risks – Country, Transaction, Partner, Sector
  14. 14. Six principles Top Level CommitmentThe Board of Directors are committed to preventingbriberyPublish statements of commitment to counter briberyfor internal and external communicationAppoint a senior person to oversee implementation ofanti bribery programme
  15. 15. Six principles Due DiligenceYou have due diligence policies and procedures inplace which cover:– all parties to a business relationship– agents and intermediaries– all forms of joint ventures– all markets in which you operate
  16. 16. Six principles Proportionate ProceduresProcedures and therefore resources expended needto be proportionate to risks you faceProcedures should ensure that there is a practicaland realistic means of achieving your anti-briberypolicy
  17. 17. Six Principles Communication and TrainingAnti-bribery policies and procedures are embeddedand understood throughout the organisationAppoint someone senior to oversee theimplementation– Internal and external communication– Method and timescale of trainingVarious methods of trainingArrangements for MonitoringPenalties for breaching policy
  18. 18. Six principles Monitoring and ReviewMonitoring and review mechanisms to ensurecomplianceInternal monitoringTransparency is importantExternal auditors
  19. 19. Miscellaneous MattersThe Likelihood of a Prosecution– Resources– Evidential Test– Public Interest Test– Must have regard to GuidanceSentence– 10 years imprisonment for an individual convicted of an offence (nb senior officer liability where corporate offence committed)– Unlimited fine for company
  20. 20. What should organisations be doing about the Act? – Anti-bribery/ethical conduct policy with zero tolerance – Any breach of policy deemed gross misconduct – Gifts/hospitality policy - reasonable and proportionate – Check political and charitable donations – No policies which reward excessive risk – No incentives for employee to commit bribery offence – Vetting policy/additional recruitment checks – No discrimination against nationals of other countries
  21. 21. What should organisations be doing about the Act? Consider amending: – Contracts of employment – Director service agreements – Non-employee contracts – Disciplinary policy – Whistleblowing policy – Expenses policy – Bonus/commission schemes
  22. 22. Any questions? Nicola Diggle Senior solicitor Commercial Dispute Resolution Tel: 01865 254285 Email: