Employment law expert Kate Wyatt, of Miller Hendry Solicitors, says the time is now to issue a stark warning to companies when it comes to enjoying a corporate day out at the golf, to ensure they stay on the right side of the law.
“With the Ryder Cup and the Commonwealth Games coming up this year many local businesses are considering offering tickets or hosted events to clients and customers. Put baldly, this could amount to a financial or other advantage intended to obtain or retain the business of those clients or customers and therefore be classed as bribery under the 2010 Bribery Act. If proven this can result in significant penalties of up to 10 years imprisonment and hefty fines.”
However, before businesses panic that their generosity to customers and suppliers could land them in hot water, Kate says there are a number of points that would make prosecution and illegality unlikely:
“First, such conduct will only be actionable if it amounts to acting improperly - the Act is not intended, according to government guidance, to prevent reasonable and proportionate hospitality and promotional or other similar business expenditure.
“Second, it is a defence for an organisation to show it has adequate procedures in place to prevent bribery on a risk based approach – i.e. the preventative measures are proportionate to the risk of bribery taking place. “
Where an organisation only conducts business domestically, the risk of actionable bribery taking place is low. The second aspect is clarified by the government guidance which sets out six principles to help businesses, including smaller businesses, avoid breaching the Act.
1. develop proportionate procedures;
2. have top level commitment to preventing bribery;
3. carry out periodic risk assessments and make sure they are documented;
4. carry out sensible checks on employees and business partners or collaborators;
5. communicate your policy both externally and internally to partners and staff and offer training; and
6. monitor and review your procedures regularly.
It is important to be aware of the importance of communicating your intolerance of bribery to staff and to provide training directed at the risk, since employers’ liability can be engaged by the actions of employees. Again, it will be a defence to show adequate procedures are in place to avoid employees acting improperly.
To limit risks, Kate recommends the following:
“Check your internal policies and procedures, including whistle-blowing and hospitality policies, against the six principles above and tighten them up as required. That way, we can all enjoy the fun and excitement that trips to the Ryder Cup and Commonwealth Games offer without fear of penalty.”