Predictions about the Bribery Act have led to some concern among companies unsure about what behaviour could now be considered bribery. The Optical Confederation (OC) believes there is little scope for bribery in optics, but is urging its members to take steps to minimise the risk.
The 2010 Act has been introduced as part of a worldwide drive to eliminate bribery because of its negative impact on fair competition, economic and social development.
The Act seeks to prosecute both those who bribe and those who accept bribes.
The most recent guidance from the UK government has clarified that the law is intended to prevent acts of bribery, not to prohibit normal business practices. The Ministry of Justice has stated that 'bona fide hospitality and promotional, or other business expenditure which seeks to improve the image of a commercial organisation, better to present products and services, or establish cordial relations, is recognised as an established and important part of doing business and it is not the intention of the Act to criminalise such behaviour'. On its website are six principles for bribery prevention.
Richard Alderman, director of the Serious Fraud Office (SFO), said: 'The Bribery Act is good news for the UK and UK business. It confirms our commitment to helping to eradicate bribery from business practices. It will help ensure that ethical businesses do not lose out to others that use bribery and corruption to win contracts. We shall enforce the act vigorously. I want to work with ethical businesses to resolve problems pragmatically and fairly.'
The law states that companies have a duty to ensure that all steps possible are taken to ensure that their employees do not commit acts of bribery. Company leaders are advised to take time to make sure that they fully understand the Act, carry out a due diligence procedure, then ensure that the right procedures are in place and that the message is communicated to all company staff.
The OC's guidance document defines bribery as seeking or intending to seek to induce a person with influence or in a position of trust, that would cause them to act in a way in which they would not otherwise have done. The Act also covers those in such positions who seek inducements from others. An offence is also committed if a person of trust performs a function improperly in anticipation of receiving an advantage, whether offered or sought.
Practitioners should carefully consider any gifts that they are offered by suppliers. Lavish hospitality could be seen as having potential to influence or obtain business advantage, although this would be based on what the norm is for the sector. Disproportionately large gifts, such as a cars or holidays, for someone from whom a deal or business benefit is obtained or expected would be deemed to be bribery.
It is important that practitioners ensure that they can meet all patients' reasonable and appropriate needs and do not allow financial considerations to distort any clinical decisions. They should not accept an inducement to recommend a particular product or service, or to prescribe a specific appliance.
In the case of optical retail practice, the OC believes that in the majority of circumstances by abiding by the General Optical Council's Codes of Conduct for Corporate and Individual Registrants, the College of Optometrists' Code of Ethics and Guidelines for Professional Conduct and the Association of British Dispensing Optician's Advice and Guidelines, companies will simultaneously be complying with the principles of the Act. Here it makes special mention of referrals and domiciliary services.
What is not bribery is also covered by the document. This outlines discounts, marketing, small gift items, sporting hospitality or conference sponsorship where they are proportionate. Reasonable corporate hospitality is singled out as: 'an established and important part of doing business'.
When deciding what action to take it is important for companies to remember that individuals, including company directors, found guilty of offences under the Act are liable to a sentence of up to 10 years imprisonment or an unlimited fine or both.
As case law has not yet been established, prosecuting authorities will have to use their discretion on a case by case basis. They will have to consider the scale of the offence, the role and seniority of the recipient and the context. The CBI has called on the SFO to take a common-sense approach to enforcement. Katja Hall, chief policy director, said: 'The Serious Fraud Office must ensure it [enforcement] is reasonable and risk-based. This will help avoid creating a culture of fear that could undermine UK competitiveness.'
In the run-up to the introduction of the Act many HR and legal companies launched training courses about how to deal with it, but if companies stick to the existing industry codes and think carefully about any gifts they are offered, these training courses will be obsolete.