The Act came into force in July of last year amidst great concern from the business community that its drafting was too wide so as to render even the most innocent of transactions as potentially corrupt. The government, keen to uphold the banner of ‘zero tolerance’ over the Act, kept the generic and broad drafting. The result – businesses are now asking how the Act relates to their business practices in real terms.
Many of our clients, particularly those in the design field, operate as a ‘middle-man’ when it comes to procurement. For example, our client acts for business A to provide design services and procure design goods from business B. In order for business A to achieve a good rate for those goods, our client has established a working relationship with business B such that if they provide business A with goods, they would do so at a special rate and, for his efforts, our client would receive a commission.
Under the Act, section 7 creates an offence whereby an organisation or person associated with it ‘bribes’ another person to gain a business advantage. Under the broad wording of the Act, receiving (or offering) a commission in this way could potentially be an act of ‘bribery’ but it depends on whether such an act could be deemed to be ‘improper performance’ of your duties.
So how do our clients try to make their performance ‘proper’ for the purposes of the Act? Unfortunately, there is little guidance on this point both in terms of official guidance and case law. The best practice advice currently seems to be:
This article is based on English law as a general guide only and, although we endeavour to ensure the content is accurate and as up to date as possible, readers should seek legal advice before taking or refraining from taking any action. The article should not be construed as legal advice and we disclaim any liability in relation to its use.