|
UK Bribery Act Guidance: Muddy[ing] the Waters |
|
|
|
By describing its “talismanic” credo to be “common sense,” the Ministry of Justice failed miserably in providing real guidance or explaining a real prosecution policy. The Ministry of Justice owes businesses more than general pronouncements. In the end, companies have to comply with the UK Bribery Act. Businesses need to recognize that ultimately it will be prosecutors and the courts that will draw the lines; there is nothing surprising in that. The inevitable result is that prosecutors will define the limits through its enforcement actions, while the courts will have a chance to review such actions. As demonstrated in the BAE case, the UK courts are more than willing to review and reject prosecutors’ proposed settlements and enforcement actions. That is how a healthy judicial system operates. This contrasts with the US system, where courts have been unable or unwilling to review and challenge the Justice Department’s enforcement of the Foreign Corrupt Practices Act.
Punting on “Guidance”
As Yogi Berra’s quote demonstrates, companies now must decide how to comply with the UK Bribery Act by relying on “Guidance” which provides no clarity whatsoever other than meaningless platitudes. Some examples demonstrate our point:
Application of the UK Bribery Act to Non-UK Companies: As written, the UK Bribery Act applies to any company that “carries on a business or part of a business” in the UK, regardless of its place of incorporation or primary location. To provide some comfort to business concerns about wide application of the Act to non-UK companies, the Guidance points out that the determination of this issue will be decided by the UK courts, and tries to carve out two possible scenarios by explaining: a. “the mere fact” that a company’s securities have been listed on the London Stock Exchange will not subject it to the Bribery Act’s jurisdiction; and
b. having a UK subsidiary would not, “in itself,” be sufficient to subject a parent company or its affiliates to the Bribery Act’s jurisdiction, “since a subsidiary may act independently of its parent or other group companies.” Companies can rest assured now that the UK courts will decide this issue. For in-house counsel, we are sure they are breathing a sigh of relief. The two specific scenarios are really not that realistic at all – you can bet that if a non-UK company engaged in any serious bribery, the UK courts will have no difficulty in finding that the non-
UK’s activities in the UK are sufficient to fall within the jurisdictional requirement.
Corporate entertainment and promotional expenditures: The plain language of the Bribery Act broadly prohibits the kinds of entertainment and promotional expenditures that are routinely made by most companies. The Guidance provides assurances that prosecutors will not bring prosecutions for routine activities: “Hospitality or promotional expenditure which is reasonable, proportionate and made in good faith is an established and important part of doing business. The Act does not seek to penalize such activity.” Where will the line be drawn between “reasonable, proportionate and good faith” expenditures and prohibited hospitality? As explained by the Ministry of Justice, lavish or disproportionate hospitality expenditures will be
barred by the Act. Again, the failure to guide leads to more uncertainty for businesses, and punts the issue to prosecutors and the courts.
Adequate Procedures Defense to Corporate Strict Liability for “Failure to Prevent Bribery: While the Act provides a complete defense of “adequate [compliance] procedures” to a corporate “failure to prevent” bribery charge, the Guidance provides little help other than the observation “no bribery prevention regime will be capable of preventing bribery at all times,” and its desire not to impose harsh sanctions on “well run commercial organizations that experience an isolated incident of bribery on their behalf.” The “Prosecution Guidance”
issued on the same day stated that “a single instance of bribery does not necessarily mean that an organization’s procedures are inadequate. For example, the actions of an agent or employee may be willfully contrary to very robust corporate contractual requirements, instructions or guidance.” For companies, this provides little comfort. Almost every prosecutor in the US and the UK would decline a case where there was a “single” or “isolated” occurrence of bribery, especially when such incident occurred despite a robust compliance program. If common sense is the guiding principle, then the guidance has provided little guidance to companies.
The Political Dance is Over: Now Comes the Real Work
For companies facing the July 1 effective date, the challenge is the same as before: review existing anticorruption compliance programs and make sure that the UK Bribery Act is addressed. Whatever the cost, every company’s counsel should be motivated to make sure their company is not the “guinea pig” for the first set of prosecutions under the UK Bribery Act. The “Guidance” provided no guidance, and left companies adopting Yogi Berra’s mantra: “If [we] don’t know where [we] are going, [we] might wind up someplace else.”
|
|
|
|
Current News
|
|
The Supreme Court has ruled in favour of three people who claimed their lives were blighted by past minor criminal convictions....
read full article >
|
A man acquitted of rape has lost his Supreme Court appeal to remove any reference to the case from his enhanced criminal records check....
read full article >
|
From 6 April 2017 those applying to come to the UK to undertake certain jobs, along with their adult dependants, will be subject to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which they have been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years, aged 18 or over....
read full article >
|
On 12 July 2016, a number of changes under the Immigration Act 2016 will come into force, including extended criminal offences for employers in relation to illegal working....
read full article >
|
The High Court has upheld a challenge by way of judicial review to the criminal records disclosure scheme used in England and Wales. It has found the scheme to be "arbitrary" and disproportionate, and it was ruled unlawful, as incompatible with Article 8 of the European Convention on Human Rights. Under the Rehabilitation of Offenders Act 1974, convictions, cautions, reprimands and warnings become "spent" after a certain period of time. However, in certain "excepted positions" (principally those working with children or vulnerable adults) the general rule does not apply and all prior convictions must be disclosed, however old or trivial, where there has been more than one previous conviction. The focus of the challenge was on this exception. Employers may wish to take preparatory steps in anticipation of the changes to the law....
read full article >
|
Employment Background screening and investigations has been around long enough for the industry focused on conducting them to be considered a mature industry.While the practice of conducting employment background screening has been around a long time it has also become ubiquitous and is inexplicably tied to the employment hiring process. Its’ estimated that more than 90 percent of all businesses and organisations conduct some form of pre-employment background check. ...
read full article >
|
FINRA’s New Background Investigation Rule Will Likely Increase Firms’ Costs and Potentially Increases Exposure for Firms in Customer Disputes ...
read full article >
|
Samantha Burmis, 45, of Bellman Avenue, Gravesend tried to conceal her criminal record in an effort to win more than £1million from an employment tribunal claim. At Maidstone Crown Court today (Friday 2 August) Burmis was sentenced to 18 months in prison for attempting to pervert the course of justice and a further six months for obtaining a pecuniary advantage by deception. Claim...
read full article >
|
The growing popularity of social networking sites has been accompanied by a rise in concern about the risks that people, especially children, may unwittingly incur by sharing their personal data online. Responding to this, the Information Commissioner’s Office recently issued new guidance on the application of the Data Protection Act to social networking. This article briefly considers the extent to which the “domestic purposes” exemption relieves the general responsibility only to process data in accordance with the DPA in the context of social networking, and also what organisations and individuals, who process personal data for purposes such as running a business, need to consider when they run, contribute to, or download personal data from social networking sites, online forums, message boards or blogs. In particular, it considers the position of a business using social networking sites for marketing purposes and the extent to which that business is responsible for ensuring that its processing of user-generated content complies with the DPA. ...
read full article >
|
DBS filter certain old and minor cautions and convictions, reprimands and warnings from criminal record certificates....
read full article >
|
The UK's banking regulator, the Financial Services Authority (FSA), has been abolished and replaced with two successor organisations....
read full article >
|
Today is the first day that a series of new regulatory bodies start doing their thang in the City of London. Here, we've outlined why they've been created and what impact they'll have on the economy....
read full article >
|
The Government has published a policy paper on the progress of reform in employment law in the last couple of years as it is half way through its Employment Law Review. ...
read full article >
|
The Protection of Freedoms Act 2012 marks some important changes to criminal record checking in the UK. Here we survey those changes which take effect for employers in England from September 2012 and highlight future developments beyond....
read full article >
|
The depth of the crisis over G4S's Olympic security preparations became increasingly clear on Thursday as recruits revealed details of a ...
read full article >
|
Scott Thompson resigned over the weekend amid rumours he added a computer science degree to his CV....
read full article >
|
Over the past few months there's been a growing hue and cry over reports that some employers ask job applicants for their Facebook login and password information as part of the vetting process. They are hardly alone, though it's not easy to know just who's doing it and who's not. But this is not new--some state and local government agencies, particularly law enforcement agencies, have been doing it for years....
read full article >
|
The use of social media in the workplace has become more and more prevalent, and inevitably there have been an increasing number of employment tribunal cases dealing with related issues. The recent unreported employment tribunal case of Crisp v Apple Retail demonstrates the importance of an employer giving careful consideration to how it will respond to the risks associated with the use of social media, in particular the importance of a strong social media policy. ...
read full article >
|
Business Secretary Vince Cable has announced the government's proposals for what BIS describes as the most radical reform to the employment law system for decades. The suite of measures is extensive and is part of the Government’s plans "to safeguard workers' rights while deregulating to reduce the onerous and unnecessary demands on business”. Dr Cable stressed that the measures are not an attempt to give “businesses an easy ride at the expense of their staff. This is not about introducing a “hire and fire” culture. We are not making a cynical choice to favour flexibility over fairness. Instead we are hacking through the excessive red tape and regulation that prevents many businesses from creating jobs in the first place”. ...
read full article >
|
In Jackson v Liverpool City Council the Court of Appeal has given some helpful guidance to employers on the provision of references in circumstances where there are outstanding but uninvestigated allegations about a former employee....
read full article >
|
International Guide to Anti-corruption Laws, which provides an “at a glance” summary and comparison of the key criminal and administrative corruption offences in the 22 countries featured. ...
read full article >
|
The loss of a memory stick containing the personal details of over 26,000 tenants of two London housing associations shows many UK organisations still have poor operating policies, say experts....
read full article >
|
After all the dust has settled, the political recriminations have been leveled, and the issuance of reams of client alerts by every law firm on the planet, companies are now staring at July 1, 2011: the effective date of the UK Bribery Act. The build up to the issuance of the Ministry of Justice’s Guidance was historic; leak after leak, political infighting and threats by international anti-corruption organizations and other governments against a weakening of the UK Bribery Act were prevalent. After all this build up, we are left with the following: the UK Bribery Act still stands, while the Guidance--which was intended to add some clarity and safe harbors for...
read full article >
|
A couple used fake passports and national insurance numbers to earn £39,000 while claiming £8,500 in benefits. ...
read full article >
|
The Confederation of British Industry (CBI) is calling on the Chancellor of the Exchequer to cut taxes and reduce employment rights in an "all-action Budget" on 23 March....
read full article >
|
Shareholders in HSBC are increasingly asking its management about the cost of remaining headquartered in the UK, although the bank has no imminent plans to leave the City of London, it said last night amid speculation that it might be gearing up to leave Britain for Hong Kong....
read full article >
|
A police chief who claimed colleagues should get customer service tips from John Lewis is being investigated over claims he lied on his CV. ...
read full article >
|
More than 9 million people working with or volunteering with children and vulnerable adults will no longer need to register and be monitored by the state following an overhaul of the checking regime....
read full article >
|
The Government yesterday announced that it had reached agreement with the four largest UK banks that they will disclose the pay of their highest paid individuals, which go beyond the disclosures required by the FSA under the Remuneration Code or required by the Listing Rules. The agreement is part of a wider agreement (known as “Project Merlin”) on bank lending and other matters with Barclays, HSBC, Royal Bank of Scotland and Lloyds Banking Group and, in relation to lending only, Santander. ...
read full article >
|
The Government has today announced the next steps in its review of employment laws. It has published a comprehensive consultation document on resolving workplace disputes and an Employer’s Charter. ...
read full article >
|
The cuts in public sector jobs announced in the Comprehensive Spending Review (CSR) will create a new North/South divide, thinktanks and unions have warned....
read full article >
|
Friday 1st October 2010 will see the coming into force of various changes to employment legislation, including major provisions of the Equality Act 2010, consolidating of disability regulations and the annual increase in the national minimum wage....
read full article >
|
The FSA has today released a Consultation Paper, which contains proposed revisions to its Remuneration Code affecting pay in the financial services sector. The revisions are proposed to take effect from 1 January 2011 and will mean far more firms are brought within its ambit. ...
read full article >
|
There have recently been very well-publicised European developments restricting banking pay. However, the important thing to note is that all financial sectors (not just the banking sector) will, sooner or later, be affected by remuneration restrictions originating in European law and so this is just the start of wider changes across the industry....
read full article >
|
The Prime Minister and his deputy Nick Clegg unveiled their Coalition Agreement, “The Coalition: our programme for government”, on 20 May 2010. It expands the initial agreement reached in the Conservative/Liberal Democrat coalition negotiations on 11 May 2010. However, it lacks significant detail. The new Coalition Government states it will “review employment and workplace laws, for employers and employees, to ensure they maximise flexibility for both parties while protecting fairness and providing the competitive environment required for enterprise to thrive.” What this will mean in practice is currently unclear....
read full article >
|
Several new employment legislative changes are due to be introduced from 6 April 2010....
read full article >
|
The European Commissioner for Justice, Fundamental Rights and Citizenship, Viviane Reding, has decided to take action to reduce the gender pay gap as part of a five-year strategy for gender equality. ...
read full article >
|
Jefferson Hunt Limited has been admitted as an International Member of the association of Professional Background Screeners and subscribes to their “code of ethics”....
read full article >
|
However the key issue in this week's show has to be the embellishment of the candidates’ CV’s....
read full article >
|
Dodgy CVs can be - literally - a matter of life and death for organisations. A survey by NDF Associates last month found that a third of NHS trusts had identified health workers who had used fake CVs....
read full article >
|
|
Industry Quotes |
|
|
|
“more than 7.5 million of Britain's 25.3 million working population have misled their potential employer while applying for a job.”
Mori .
|
|
Quote of the Week
|
|
|
|
“"Nothing is more noble, nothing more venerable than fidelity.
Faithfulness and truth are the most sacred excellences and endowments of the human mind."
.”
Cicero
|
|
|
|
|
|
|
|
|
|
