What is bribery?
A bribe is any inducement or reward provided by Person A for Person B to act improperly in order to gain an advantage (whether commercial, contractual, regulatory or personal). A bribe may take the form of money, gifts, hospitality or some other benefit (eg an employee benefit) or promise to provide one of those things in the future.
Conduct can still be considered bribery if it happens in a private business relationship (ie not only if public officers or government officials are involved). It does not matter whether the bribe is provided directly or indirectly or whether the person receiving the bribe is the same one who will deliver the advantage.
UK legislation counts improper payments used to induce people to do their job properly as bribes. These are known as 'facilitation payments'. They typically involve a bribe used to avoid an application or notice being 'lost' or put to the bottom of a pile.
It is also a specific offence under the Bribery Act 2010 to bribe a foreign public official. For these purposes, 'public official' is very broadly defined and includes anyone who:
holds a legislative, administrative or judicial position of any kind (whether appointed or elected) in a country or territory outside the UK
exercises a public function for or on behalf of any country or territory outside the UK or any public agency or public enterprise of such a country or territory
is an official or agent of a public international organisation
What is corruption?
Corruption occurs when someone misuses their entrusted power or office for private gain. Corruption encompasses all kinds of improper activities, but can include:
public servants demanding money or favours in exchange for services
politicians misusing public funds or granting jobs to friends and family (ie nepotism)
corporations bribing officials to obtain lucrative contracts
Corruption is particularly difficult to eradicate because it can occur anywhere (both in the public and private spheres) and involve anyone (eg politicians, officials, businesspersons, and members of the public).
Corruption often happens secretively with the help of professional enablers (eg bankers, lawyers, and accountants) and it can even adapt along with the times (eg advancements in legislation or technology).
When may a business be at risk of bribery or corruption?
It is important to recognise when your business and workplace may be at risk of bribery or corruption. Avoid working with individuals and businesses who/that:
are reluctant to complete due diligence or provide important documents
insist on using their own contacts (eg manufacturers or suppliers) without making a business case for this
request payments to unidentified, personal, or offshore accounts, or in cash
have been found guilty of misconduct previously
You should also be wary of working with agents and distributors overseas, as this can sometimes leave exporters vulnerable to corrupt practices, with third parties paying bribes on their behalf and without their knowledge.
Risk areas include obtaining customs clearance, licences, and permits; moving goods; and ensuring brand protection while bypassing the legitimate channels.
Who is liable for bribery?
You have committed an offence whether you are the person giving/offering a bribe or the person receiving/soliciting it.
An organisation is liable for bribery that takes place in connection with its business even without its knowledge if it fails to take adequate measures to prevent it.
Companies and limited liability partnerships (LLPs) are generally responsible for all associated persons, which include not only employees with an Employment contract but also everyone who provides services to it or on its behalf (eg agents and consultants).
Senior officers and directors of a company may be held personally liable for bribes if they consented to or connived in the bribe.
What about bribery outside the UK?
If you are a person with a 'close connection' to the UK, you can be prosecuted even if bribery takes place elsewhere and you live and work outside the UK.
Companies that are registered in or carry out business in the UK can be prosecuted even if bribery takes place elsewhere.
It is not a defence that an act was lawful under the laws of the country where the bribery occurred (with extremely limited exceptions).
What else should I know about bribery?
All organisations should conduct a risk assessment to analyse the extent to which they are exposed to the potential for bribery and should take measures to combat the risks identified.
Bear in mind that you will need to comply with local laws in the countries in which you operate as well as UK rules.
Training and written guidance for staff are essential components of the 'adequate measures' defence (ie the avoidance of liability for bribery committed by a company’s employee or similar), but may not be enough by themselves. It is a good idea to make an Anti-bribery and corruption policy to outline how you avoid workplace bribes and corruption. If you want to include an anti-bribery clause in your Employment contracts, Ask a lawyer.
Adopting the appropriate tone from the top down matters. Ensure senior staff establish and publicise a zero-tolerance regime, internally and externally.
The government has issued guidance on avoiding liability for bribery and the risk-based approach.