Asking the right questions about a company’s anti-bribery measures is a helpful starting place to establish its compliance with the Bribery Act 2010 ( the ‘Bribery Act’ or the ‘Act’).
Building upon the guiding principles explored in our article 'The Bribery Act 2010 - how aware is the SME community?', below is a checklist of key areas for a company to consider in assessing whether it is compliant in countering bribery.
There is a statutory defence available to companies under section 7 of the Bribery Act if they can demonstrate that they have adequate procedures in place to prevent any incidents of bribery.
The following questions would be essential for your company to see if it is putting such measures in place:
- Does your company have a policy publicising its zero tolerance of bribery, which is up-to-date?
- Is your company committed to implementing an anti-bribery programme? Does the programme include the company’s anti-bribery efforts, such as its values, internal and external communication, training and guidance, and sanctions for breaches?
- Do your human resources practices reflect your company’s commitment to its anti-bribery programme?
- Does your company carry out regular risk assessments to determine the risks of bribery and tailor its bribery prevention measures to mitigate such risks?
- Do your company’s internal anti-bribery controls include financial and organisational checks over accounting and record-keeping practices and related business processes? Are such internal controls subjected to regular review and audit?
- Does your company provide secure and accessible channels through which employees and others can obtain advice or raise concerns without risk of reprisal?
- Does your company publicly disclose information about its anti-bribery programme and the implementation of the programme?
- Is your company’s anti-bribery programme implemented across all business entities over which your company has effective control?
Section 7 of the Bribery Act 2010 also makes clear that a commercial organisation can be liable for conduct amounting to bribery, provided that it is incorporated or formed in the UK, or it carries on a business or part of a business in the UK. So it is important for your company to ask itself these questions if it operates in the UK as part of a multi-national organisation:
- Is your company publicly committed to being consistent with all relevant anti-bribery laws in all the jurisdictions where it operates?
- Do you encourage an equivalent anti-bribery programme across business entities in which your company has a significant investment or with which it has significant commercial relationships?
Certain transactions are more likely to be caught by the Act’s definition of “financial advantage” and subsequently put a person at greater risk of being liable for conduct amounting to bribery. Therefore, it would be advisable to consider the following questions:
- Does your company’s anti-bribery programme have policies, procedures and controls in relation to:
- Political contributions?
- Charitable donations and sponsorships?
- Facilitation payments?
- Gifts, hospitality and travel expenses?
It would also be of interest to any regulators or enforcement authorities involved in any bribery investigation to see the level of involvement of your company’s top-level management in its anti-bribery programme, so it is worth bearing in mind these questions:
- Do any of the following representatives of your company’s leadership demonstrate active commitment to your company’s anti-bribery programme and act as an example for transparency and integrity?
- Board or equivalent body?
- Chair and/or chief executive?
- Does your leadership assign unambiguous responsibility and authority to managers for carrying out the company’s anti-bribery programme?
By asking the following questions, company will be able to reflect on the adequacy of bribery prevention procedures in terms of the level of control it has over “associated persons”, as defined under section 7 of the Act, including employees, agents, suppliers etc.
- Are your company’s anti-bribery procedures communicated to:
- All employees?
- Business partners?
- Other stakeholders?
- Is bespoke training provided to:
- All directors, managers, employees and agents?
- Key high-risk third parties, including intermediaries, contractors and suppliers?
If asking any of the above questions leads to more queries about the adequacy of your company’s bribery prevention procedures, and if you would like assistance with reviewing your company’s procedures, then please contact our Crisis Response team.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.