Drafting a robust anti bribery and corruption policy key considerations for employers

The Criminal Justice (Corruption Offences) Act 2018 is the key law governing bribery and corruption in Ireland. The Act includes a specific corporate offence where an organisation is guilty if any of its employees, agents or subsiders commit and act of corruption for benefit of the organsiation.

While the Act does not explicitly require an ant-bribery policy, if grants a statutory defence only where an organsiation can demonstrate it took ‘’all reasonable steps and exercised all due diligence’’. As such, having a policy is essential and may help as evidence of ‘’due diligence’’ in establishing a clear ethical framework that demonstrates key commitment to corporate governance. In turn it may help reduce any legal, financial and reputable risk associated with corruption.

The following details key considerations for inclusion in such a policy. This list is not exhaustive and not substitute for processional legal and compliance advice. The design and content required to meet ‘’all reasonable steps and exercise due diligence’’ requirement are outside the scope of Ibec’s advice. Due to the severe penalties under the Act, legal counsel is recommended to tailor the policy to your organsiation specific risks, size and business operations. Nonetheless, the below considerations can be a useful starting point.

1. Statement of commitment and purpose

• Set out the purpose of the policy i.e. to establish and enforce the organisation’s commitment to conducing all business ethically, honestly and in full compliance with all legal requirements, including the Criminal Justice (Corruption Offences) Act 2018.
• Outline any additional legislation which applies, which may include Criminal Justice Acts (e.g., 2011 mandatory reporting), Money Laundering Regulations, Ethics in Public Office, and Regulation of Lobbying Acts.
• Statement setting out a zero- tolerance approach to all forms of corruption and bribery (to include direct and indirect).
• Define who the policy applies to i.e. all employees, directors, contactors, consultants, agency workers, subsidiaries etc.

2. Definitions and prohibition

• Provide simple and clear definitions of what constitutes a ‘’bribe’’ (both active and passive), ‘’corruption’’ and ‘’improper conduct’’ and that they are prohibited.
• Signify that a bribe does not have to be given or accepted to commit an offence as agreement to give or accept the bribe is sufficient to make the crime.
• Statement that ‘’facilitation payments’’ which are small payments typically paid to speed up an administrative process or secure a routine government action by an official are also strictly prohibited.
• Provide definition of a ‘’Public Official’’.

3. Gifts, hospitality and entertainment

• Define what constitutes a gift, hospitality and entertainment under the policy, however, outline the list is not exhaustive
• Outline that all gifts and hospitality must be, reasonable, proportionate and in good faith. In addition, outline the underlying principle is that no gift or hospitality, should be given or accepted with the intent to improperly influence business outcome.
• Set clear maximum monetary thresholds for giving and receiving gifts/hospitality and entertainment.
• Explicitly prohibit the giving or receiving of cash.
• Outline process of registering gifts in excess of a specific value e.g. €100.
• Include the caveat that irrespective of value, state that all gifts/ hospitality receive by those with purchasing power from suppliers and contracts , must be registered.
• Outline if gifts/hospitality in excess of a specific amount must also be notified to management in addition to being registered.
• Outline if any proposed gifts/hospitality with a potential value above € x must be notified to management for their approval in advance of acceptance and that subsequently this approval must be recorded on the Register.
• Specify circumstances, if any, where gifts will be shared equitably amongst other employees, for example, if one employee receives multiple and/or high value gifts.
• State that all interactions, gifts and hospitality involving public officials are subject to heightened security and will, on all occasions require senior management approval.

4. Conflicts of interest

• Require declaration of personal interests and outline processes for mitigating them.

5. Using Agents and other intermediaries

• Statement of what controls will be put in place to ensure that third parties properly detect, prevent and do not engage in bribery or other forms of corrupt practices

on the organisation’s behalf which may amount to an offence under the Act. This may include standard contract provisions relating to compliance with anti-corruption and anti-bribery legislation and this policy.

• Statement that employees engaging with third parties should be sensitive to any ‘red flags’ that may arise when dealing with an intermediary or third party to ensure to that improper payments are not being directed to government officials or others.
• Provide a non-exhaustive list of examples of such ‘’red flags’’ which may include:
• requests for commissions that are unusually large in relation to work involved
• requests for any “up front” payments not contractually provided for
• requests for payments to be made to an offshore bank accounts
• refusal by an agent or third party to commit in writing to compliance with the policy
• refusal by an agent or third party to provide written reports of their activities
• any history of illegal, unethical or questionable behaviour by the third party in question
• any family or business relationships between the agent or third party and government officials

6. Accounting controls

• Mandate that all expenses, payments and transaction be accurately, completely and transparently recorded.
• State that misleading or false claims of expenses is a breach of the policy.
• Outline formal process of making charitable donations.
• Include statement that the organsiation does not make donations to political parties or candidates, if applicable.

7. Policy Violations

• State that failure to comply may be a criminal offence and that the criminal law relating to bribery and corruption carries severe penalties.
• Breach of policy may also result in disciplinary action up to and including dismissal.

8. Raising concerns

• Detail the various confidential channels available for employees to report suspected breaches of policy or corruption, including the Protected Disclosures policy.
• Include commitment to protecting individuals from retaliation or victimisation for reporting concerns in good faith as per the Protected Disclosures Act 2014 to 2022

9. Training and awareness

• Statement that senior leadership must actively champion the policy.
• Include what training employees will receive and that identified roles may receive additional training.
• Commit to proving regular reminders and policy material for staff to review.

10. Review

• Reserve the right to review the policy.

Appendix 1: Corruption and bribery red flags

• Statement that the appendix provides a non-exhausted list of potential indicators that may signal bribery, corruption or improper conduct.
• Statement that the existence of a red flag may not prove misconduct but warrants immediate action and reporting in line with internal procedures.
• Examples may include
• Vague invoicing
• Payment anomalies
• Excessive/ inflated costs
• Unusual commission
• Excessive gifts/hospitality
• Avoidance of process

The introduction of a robust policy is essential to help meet the due diligence requirements Act. While the aforementioned considerations provide a good foundation, the legal defence will rest on the suitability and rigour of implementation of such a policy. Therefore, the seeking appropriate advice is key to meet the requirements and demonstrate commitment to ethical business practise.