You may (or more likely not) be singing along to Cliff Richard’s “Mistletoe and Wine” as you click on your mouse whilst buying gifts or venture out to the shops. This year, rather than attending drinks and parties, if you are buying gifts for suppliers, customers or business contacts, have you thought about whether you’d fall foul of the Bribery Act 2010? “Bah humbug” indeed. Here are some tips:
- Your company should have an anti-bribery and corruption policy under the Act. At Mundays, we also have a corporate hospitality and gift policy which forbids gifts over a certain value (such as £100), but this also covers a pattern of gifts which may be of lesser value, forbids the solicitation of gifts and requires gifts to be declared. The key here is to maintain integrity in your dealings, and to have clear procedures for your employees and directors.
- Some commercial contracts and particularly public sector contracts will have anti-bribery provisions, and you should also check these.
- By way of guidance:
- Intention: even though you probably just want to say thank you, you should consider the intention of the gift. Not many people would admit to giving a gift intending to make a financial gain, but the Bribery Act forbids you attempting to gain unfair advantage.
- Timing: if you are in the middle of contract negotiations or a tender then the gift may be seen as an inducement for financial gain and be classed as bribery.
- Value: a modest gift may be permissible – there is no guidance on this, so a “common sense” approach is best.
- It is also the perception of corporate hospitality/gifting that needs to be looked it – as an objective person, would the gift be seen in a negative light? Speak to your peers or your professional advisers for their views, and consider what is acceptable in your industry. When the Act first came about, some commentators saw it as the death knell of hospitality, but that certainly hasn’t been the case as proportionate hospitality is permitted.
- Overseas: please note that the Bribery Act applies also to gifts made abroad or to/from you by overseas parties. This is a tricky area, since certain behaviour may be seen as typical abroad. The tests in that country would apply and an offence can still be committed here whether you are in the UK or if you are connected with the UK.
- The anti-bribery legislation is of course extensive and the Government has given brief guidance
In summary, if your gift is proportionate and reasonable, then you should be fine to say thank you at Christmas with that bottle of wine (or two).
If you need help putting together an anti-bribery and corruption policy or additional advice, please contact our Corporate & Commercial team.
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP