a) Has anyone read your anti-bribery policy?
It is now well established that a company's anti-bribery policy, which simply gathers dust on a shelf at corporate HQ, offers no legal protection to your organisation if an employee or your contractor engages in corruption. The policy must be shared, explained, discussed and reviewed. It must become part of corporate culture, from top to bottom, and be shared with external contractors and agents.
So far, so good. But, one very practical problem is that corporate anti-bribery policies are growing in length. They are likely to cover in detail the six principles set out by the Ministry of Justice and may even cover the ten hallmarks identified by the US DoJ and SEC. They may include statements about rolling risk assessments, due diligence lists, annual training and certifications, M&A due diligence, corporate hospitality approvals, supplier due diligence etc.
And if no-one is reading the policy because it’s too long then the policy, no matter how perfect the wording, offers little defence against prosecution.
Our recommendation is to stick with a short policy, accompanied by some simple training. The training must be made relevant to those receiving it, taking account of what they do and where in the world they do it.
b) "Facilitation payments" are bribes, but not for everyone
In some places they are called "facilitation payments", but under UK law these small bribes, paid to foreign officials to "speed up" service, are illegal and subject to prosecution under the Bribery Act. There is a huge problem around this. Frankly, it can be difficult to do business in many parts of the world without making such payments and head office disapproval may have little weight with agents, intermediaries and even remote employees.
The scale of the problem facing companies is illustrated by new research from Transparency International, which found that, globally, more than 1 in 4 people paid a bribe in a recent 12 months period. They reported that small bribes are "most likely to be demanded in overseas markets, where employees may be vulnerable through travelling alone or the company needs to release critical goods from customs".
The position is also complicated by the fact that some countries, including Australia, New Zealand, South Korea and USA, allow facilitation payments when paid abroad, though they are illegal under domestic law.
Transparency International has produced a very useful, free handbook full of practical guidance for employers on how to counter demands for small bribes.