Anti-Bribery

What is Bribe?

The Bribery Act 2010 modernised the law relating to bribery. The Act sets out that it is illegal to offer, promise, give, request, agree, receive or accept an advantage where it is “improper” for that person to accept the advantage, or where the advantage is intended to cause the recipient to perform their duties “improperly”.

“An advantage” does not just refer to the commonly thought of monetary bribes which can catch some companies out. Bribes can take many different forms such as hospitality, travel, charitable donations and nepotism. Establishing the difference between rewarding a customer or supplier (or being rewarded) and offering (or receiving) a bribe is absolutely crucial. Businesses should also be aware that if a bribe is offered or received on its behalf by an intermediary then the company is still liable.

Minimising Bribery Exposure

The maximum sanctions in the UK are 10 years imprisonment (for individuals) and unlimited fines (for both companies and individuals). It is therefore important that a company assesses its potential exposure to bribery. Bribery has no borders so companies should assess where they do business and whether there are any countries that pose a higher risk to bribery than others. Companies should also complete due diligence on their intermediaries and their specific industry to assess further risks.

Trading internationally adds to the complexity of anti-bribery rules, as the rules themselves differ between countries and it is not always obvious when a gift or payment of any kind could amount to bribery abroad. We therefore recommend obtaining advice relevant to each jurisdiction that a business trades in.

Preventing Bribery

In addition to actually offering a bribe, a company can find itself in breach of the Bribery Act if it cannot demonstrate that it has taken reasonable steps to prevent bribery from occurring.

An effective way of demonstrating that steps have been taken is to adopt and enforce a clear Anti-Bribery Policy. The policy should include the business’s approach to reducing and controlling the risks of bribery, rules about accepting gifts, hospitality and donations, guidance on how to conduct business negotiations and rules on avoiding or preventing conflicts of interest. It can also set out the company’s whistleblowing policy to encourage individuals to report potential acts of bribery.

Having regular training offered to all staff explaining what bribery is, the risks and the company’s steps to reduce the risk of bribery is another simple and effective preventative measure.

A company can also set out its attitude to bribery in contracts with its intermediaries but including specific bribery clauses or policies relating to action that the intermediary must take to reduce the risk of bribery.

Our Commercial Team has a great deal of experience in supporting companies in drafting and enforcing anti-bribery policies and bribery clauses as well as providing training and would be happy to talk you through your options.