Bribery Act 2010 - In Force Today

The long-awaited Bribery Act 2010 comes into force today, implementing a new, far-reaching and comprehensive scheme of bribery offences. It applies to both the public and private sectors and is of fundamental importance to all commercial organisations that either operate or are registered in the UK. Some provisions are more extensive than equivalent laws elsewhere, including the US Foreign Corrupt Practices Act (FCPA). The Taylor Wessing Bribery Act Microsite is intended to provide a "one-stop shop" online resource centre; providing a simple guide to the Act and dealing with many frequently asked questions.

Our Bribery Act Microsite is continuously updated and provides a useful overview of the provisions of the Act, content, FAQs and discussion papers on how the act effects different sectors. We have also been working with individual clients assisting them in managing the risks associated with their new legislation and ensure their compliance in a number of ways including:

Risk Assessment

The process of putting in place procedures to prevent bribery must be informed by a well documented risk assessment. This assessment must be overseen by top level management and be appropriately resourced. Risk assessments should be carried out periodically and must also be repeated when the organisation's risk levels change, for example when an organisation enters a new market or completes an acquisition.

The organisation must consider external risks such as the countries and sectors in which it operates, as well as internal risks such as levels of staff training and clear financial controls. Taylor Wessing is currently assisting a number of organisations with their risk assessments. We provide guidance notes and advice on issues such as the risks involved in offering certain forms of hospitality and the extent to which members of the group organisational structure not domiciled in the UK will be subject to the Act.

Training

The Guidance makes clear that there must be a top-level commitment to the prevention of bribery within an organisation. This requires senior management to take responsibility for communicating an organisation's anti-bribery stance and to have the appropriate degree of involvement in developing bribery prevention procedures. It is essential that senior management of an organisation are aware of the bribery risks within their organisation and are involved in developing anti-bribery policies. For this reason, we have provided bespoke training sessions for board members of many organisations. These sessions are tailored to the risks that organisation faces and the adequacy of its current ethical policies.

Principle 5 of the Guidance contains a requirement to ensure that anti-bribery policies are clearly communicated throughout an organisation. This includes the provision of training to employees and associated persons. Taylor Wessing designs and delivers staff training for organisations seeking to comply with the Act.

Policies

The Guidance refers throughout to the importance of putting in place anti-bribery policies that have been clearly communicated to all relevant persons. Policies must mitigate identified bribery risks and prevent deliberate unethical conduct. An organisation’s policies must not only cover its employees but also all third parties who perform services for or on behalf of the organisation. Taylor Wessing is assisting a wide range of companies with the drafting and implementation of their anti-bribery policies. The types of requests Taylor Wessing regularly receive are:

• drafting a full ethical policy covering all entities within the international group structure;
• reviewing current policies (including FCPA compliant policies) and making any necessary amendments;
• drafting specific policies to deal with identified bribery risks i.e. corporate hospitality;
• reviewing employment contracts to ensure they expressly prohibit bribery and communicate company policy on bribery and
• reviewing agreements with agents and service suppliers to ensure they comply with the Act and communicate organisational policy on bribery.

Every organisation should take a tailored approach to ensure compliance with the Act based on the specific risk areas it identifies. Some organisations will find that they do not need to do much in practice in order to comply with the Act, while for others compliance will require significant input. Should you require guidance and assistance with the implementation of your organisation’s Bribery Act compliance regime or would like further information on any of the above please contact a member of our team.

Further information on the Bribery Act is available on our microsite.

Lawyers David de Ferrars, Sean Nesbitt