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Bribery Act – compliance

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Background

As a practice owner, you must have adequate procedures in place to prevent bribery [1].

Bribery is broadly defined and covers any financial advantage or reward that is offered to, promised to, given to, or received by an individual or company to induce or influence that individual or company to perform its functions or duties in an improper manner [2].

Taking a proactive approach 

It is important to take a proactive approach to preventing acts of bribery because you, as an organisation, could be liable if an employee or agent acting on your behalf commits a bribery offence. The Ministry of Justice (MOJ) however has confirmed you would have "full defence" for this offence and "can avoid prosecution" if you can demonstrate you had adequate procedures in place to prevent bribery [3]. You can do this by broadly following two steps:

  1. Carry out a review or risk assessment of activities and relationships that could trigger corporate liability
  2. Ensure you have adequate procedures in place to prevent bribery based on your risk assessment. Including keeping this under review as your business changes over time [2].

Mitigating risks, the six principles

In most cases as an eye care provider in the UK there is likely to be little to no risk of bribery [4]. This means that although you should tailor your risk assessment to your specific organisation's operating model, it is unlikely you will have to perform a complex risk assessment [5]. For example, the MOJ notes:

  • "If there is very little risk of bribery being committed on behalf of your organisation then you may not feel the need for any procedures to prevent bribery", and that there is "no need for extensive written documentation or policies. You may already have proportionate procedures through existing controls over company expenditure, accounting and commercial or agent contracts for example." [5]

To help demonstrate compliance you can follow the six principles set out by MOJ:

  1. Proportionality: take action based on the risks you face and to the size of your business.
  2. Demonstrate top level commitment: show that leadership has been active in helping all employees and agents you engage that you do not tolerate bribery.
  3. Risk assessment: assess the risks your organisation might face - e.g. if you only provide routine (GOS and private) eye care in the UK you are likely to have minimal to no risk
  4. Due diligence: having proportionate and risk-based checks and balances in place before engaging others to represent you can help protect your organisation
  5. Communicate: make sure your staff and others who work on your behalf know about your policies and procedures that help to reduce the risk of bribery
  6. Monitor and review: maintain an active approach, so as your organisation changes over time make sure you keep your approach to preventing bribery under review so that they continue to help you mitigate risks.

GOS England - Gift register

As part of general contract compliance, GOS contract holders in England must also maintain a gift register which records any gifts received that are worth over £100.

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Updates

Originally published: June 2011

Reviewed: January 2020

Next review date: July 2021

Info:  The Optical Confederation (OC) originally published Bribery Act guidance ahead of the Act coming into force in July 2011 [6]. In January 2020 we created this online version above with a link to the original OC 2011 guidance and Ministry of Justice resources. 

References and notes

This guidance and the original OC guidance is intended as guidance only and does not claim to be a comprehensive statement of the law.  We will keep this guidance updated as case law develops. If in any doubt, you can contact us for additional support and take further independent legal advice.  

[1] "The Bribery Act 2010 creates a new offence under section 7 which can be committed by commercial organisations which fail to prevent persons associated with them from bribing another person on their behalf.

An organisation that can prove it has adequate procedures in place to prevent persons associated with it from bribing will have a defence to the section 7 offence."  Source Ministry of Justice 2011, The Bribery Act 2010 guidance

[2] FODO's employment law partner Ellis Whittam, Bribery act post, also available in FODO's practice owner's hub   

[3] Ministry of Justice 2011, The Bribery Act 2010 guidance

[4] The Ministry of Justice notes: "Many organisations will face little or no risk of bribery, especially if their business is undertaken primarily in the UK. If you operate overseas, the risks may be higher." (Source: Ministry of Justice, The Bribery Act 2010, quick start guide). This is also the case in primary eye care in the UK, but in addition most eye care providers already work in a highly regulated environment - e.g. adhering to General Optical Council standards for professionals and businesses - which further reduces risk.

[5] Ministry of Justice, The Bribery Act 2010, quick start guide

[6] Optical Confederation 2011, Bribery Act 2010 guidance