The Bribery Act 2010 (the 'Act') was created to make dishonest behaviours in business difficult for individuals or organisations intent on corruption. The Act was not intended to be unduly burdensome to the vast majority of decent, law-abiding firms and convictions under the Act have been rare so far. In order to provide an indication of the scope of the Act, it creates four offences:
- Bribing another person.
- Being bribed.
- Bribing a foreign public official.
- A commercial organisation failing to prevent bribery.
Under the Act, bribing another person is offering or giving a financial or other advantage to another person to induce them to perform improperly an activity connected with a business, ie., other than a reasonable person would expect.
It is important that organisations have policies in place proportionate to the bribery risks faced so everyone is clear on exactly what they can and cannot do. For example, an organisation operating in markets where fraud is perceived to be more likely would be expected to have more stringent procedures in place than a small shop simply trading with the local community.
Where organisation are concerned about 'rogue' employees, solace can be taken in the fact that it is a full defence for an organisation accused of bribery offences to have adequate procedures in place to prevent bribery.
Turning back to the question in hand, combating the risk of bribery on a day-to-day basis should be more about common sense and should not create overly onerous obligations for the organisation. Reasonable and proportionate hospitality and promotional expenditure are not intended to be caught by the Act.
In short, the Act is not intended to stop companies getting to know their clients. Therefore, if the hospitality in question is low level and is intended to establish cordial relations, to cement good relations, or to seek to enhance the organisation's image, then it should be fine to allow employees to attend.
Q I have received a request from one of my most valued employees asking for a career break. He is young and wants to travel, but is keen to return to his job after six months. What are the legal considerations?
With rising university fees, many students put off travel until such time as they have worked and earned sufficient cash to fund their travels. Often, the employee has become established in their workplace and the prospect of resigning to undertake travel is a step too far, especially in an uncertain job market. As such, a career break, where continuity of employment is preserved, is an attractive option to many.
The benefit of granting a career break though, may be more one-sided than is initially evident. On one hand, the employer has the certainty of knowing the employee will return at an agreed date, albeit the employee is free to resign should he or she change their mind about returning at any time. On the other hand, the employee has the benefit of continuity of service which continues to amass during his or her absence.
Further, albeit this is a matter that is not yet determined by the courts, it appears likely the employee would continue to accrue annual leave entitlement because the contract of employment subsists during the break. And the employee could technically make a request for paid leave while on a career break and, as such, this should be considered when the costs and merits of any application are being assessed.
Where an organisation decides to agree to a career break, a written agreement should be put in place setting out the basis upon which it is offered. Specifically, it should be made clear what the possible implications would be when the employee returns, including the possibility that they may be redeployed to another role if the role they left is no longer available.
60 second guide... to redundancy
A redundancy is a form of dismissal and, if not done properly, could be potentially unfair, so it is essential that organisations follow a fair and robust procedure to protect them from claims.
Broadly, there are four main situations which commonly face businesses and are captured under the banner of redundancy. These are closure of the business entirely, closure of one particular workplace, an overall reduction in the size of the workforce, and restructuring the way work is done.
Before reaching any decisions on ways to deal with a particular situation, you should consult with affected staff. Failure to consult may make a redundancy unfair. Consultation should involve a genuine exchange of views and information, and consideration of options that would avoid compulsory redundancies such as redeployment or voluntary redundancy.
There are minimum consultation periods of at least 30 days before dismissal if making 20 to 99 redundancies and 45 days for over 99 redundancies. Larger scale redundancies also involve the need to elect representatives for collective consultation and to submit a form, HR1. During the consultation, an employer must look for alternative employment and should offer any suitable available vacancies. Specific advice should be sought where an affected employee is on maternity leave.
Affected staff should be pooled and a pool should include those doing similar work. Once a reasonable pool is chosen, if there is a need to select employees, the employer must choose reasonable selection criteria and these should be objectively measured and not discriminatory. Productivity, time keeping, future needs of the business and sickness level (discounting disability related absences) are often used. Length of service can be used, although it should not be a standalone criterion.
Any redundant employee with more than two years' service is entitled to a redundancy payment that will be calculated based on his or her length of service and age at dismissal.
If you are considering making employees redundant, you should seek legal advice.
