Could your corporate gift be a bribe in disguise?
It can be a fine line between giving a customer or business associate a corporate gift and contravening the Bribery Act. We look at the law surrounding corporate gift giving.
While the Bribery Act 2010 takes a tough stance on corruption, it’s not intended to stop all forms of corporate hospitality or prevent businesses from giving gifts. So where is the line drawn between an innocent gift to say ‘Merry Christmas’, and a potential bribe? And how can you make sure your business stays on the right side of what is allowed?
The Bribery Act is one of those pieces of legislation that most businesses do not even realise exists – until it’s too late. The definition of a bribe as opposed to a corporate gift can be blurry at the top end of the scale, but to put your mind at rest, businesses shouldn’t be too worried if they’ve sent out a batch of Christmas mugs to customers.
Corporate gifts or hospitality are not criminalised in the Bribery Act. Those that are reasonable and proportionate are quite acceptable.
To identify if the gift that you’ve been offered falls into the ‘okay’ bracket, there are three key factors to consider:
A bottle of wine to say thank you to a customer is normally acceptable. But any gift or freebie that is intended to induce the recipient to make a business decision in favour of the giver is definitely not okay.
You’ll need to consider if the value of the gift is relatively modest for the industry you’re in. There’s no specific limit to the value of a gift that will be considered acceptable, but you can use common sense. For example a bottle of wine may be appropriate, but an expensive bottle of vintage champagne may require closer scrutiny.
Modest gifts given around Christmas won’t raise too many eyebrows. But gifts that are given at the time of a tender or during a dispute could be considered a bribe, no matter how innocent or innocuous they may be.
Accepting gifts that comply to the three factors above
If you feel a gift meets the requirements set out above, it can normally be accepted. But when it comes to receiving any gifts or corporate hospitality, openness and transparency is still essential. Have a clear policy for staff to follow and a register for all items to be logged, even if they appear to have a low commercial value.
Protect your business from prosecution
A business could be found guilty of failing to prevent bribery if it cannot show it has ‘adequate procedures’ in place to prevent it. There are six key principles to follow to identify what you need to do:
- Proportionality – actions should be in proportion to the risks you face
- Top level commitment – the approach to prevent bribery should be led from the top
- Risk assessment – to identify level of risk
- Due diligence – the onus is on you to know who you are employing and that they can be trusted
- Communication – your approach to bribery needs to be clearly communicated to staff and others
- Monitoring and review – risks can change, so your procedures need to be monitored and reviewed regularly to ensure they are still adequate for your business.
What if you suspect an employee of accepting bribes?
If you suspect an employee has accepted bribes, your legal team will again be your first port of call. You’ll need to conduct an investigation into these allegations as early as possible and take swift action. You’ll also need to consider whether you can, as a business, prove that the adequate procedures were in place to prevent bribery.
With expert legal guidance you can decide the best course of action for your business. For example, whether it is appropriate for your business to initiate a Deferred Prosecution Agreement (DPA) to avoid a prosecution.
Corporate gifts can be a bit of a minefield, so never simply assume that your bottle of wine or desk set can be regarded as completely innocent. Every action has its consequences, and the Bribery Act is there to make sure that businesses do not have an unfair advantage, simply because they give out better corporate gifts than you. The golden rule, as always, is that if you’re in doubt, check with a legal expert.
For more information and help with this issue or a similar issue please contact Haggai here.