If one of your employees is caught accepting a bribe, what can you do about it? And what steps should you take to ensure that your organisation does not suffer the consequences of an employee’s bad judgement? This briefing looks at the issues.

The case of Blake v. Home Office has reminded employers of their obligations under the Bribery Act 2010. In this case, an Employment Tribunal found that an immigration officer who had lost her job for accepting a bribe from an offender, despite subsequently returning the money and reporting the matter, was fairly dismissed.

What happened

Ms Blake was employed as an administration officer in the Immigration Enforcement Team and worked in Croydon. Before the incident occurred, her disciplinary record had been unblemished.

She had accepted money, amounting to approximately £200, from an immigration offender, concealing it but subsequently returning it to him. She then reported the incident.

Despite this, the Home Office considered that her report was not timely – the immediate reporting of an attempted bribe is mandatory under the Home Office’s guidance to staff on the Bribery Act. Blake’s actions also breached the Home Office’s anti-corruption policy.

An investigation was started into the breach of policy and Blake was suspended until it delivered its conclusions. A disciplinary hearing took place and Blake was dismissed for gross misconduct. She appealed against her dismissal but was unsuccessful.

The Tribunal’s decision

The Tribunal looked at several issues regarding the case. The investigation that had been carried out was reasonable and thorough, giving Blake ample opportunity to state her case.

The explanation that she gave did not tally with CCTV records; neither was her account of reporting the incident backed up by computerised records. Her employer therefore had grave doubts about her honesty and integrity and as far as the Tribunal was concerned, the conclusion that she had taken a bribe was a reasonable one. This outweighed the fact that she had returned

the money and made a report of what had happened. Her previously unblemished employment record also counted for little in light of her actions.

Since she had been on anti-corruption and anti-bribery training courses, she could be considered to be aware of what was required of her and her serious misconduct resulted in a loss of trust. Since Blake was an employee in a position that required impartiality and a high degree of trust and integrity, her actions were serious enough that dismissal was the only reasonable and possible sanction available to her employer. Her claim of unfair dismissal failed.

What does the law say?

Sections 2 and 7 of the Bribery Act 2010 are the relevant sections in this case.

Section 2. Offences relating to being bribed(1) A person (“R”) is guilty of an offence if any of the following cases applies:

(2) Case 3 is where R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by R or another person).

(3) Case 4 is where (a) R requests, agrees to receive or accepts a financial or other advantage, and (b) the request, agreement or acceptance itself constitutes the improper performance by R of a relevant function or activity.

(4) Case 5 is where R requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance (whether by R or another person) of a relevant function or activity.

(5) Case 6 is where, in anticipation of or in consequence of R requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly— (a) by R, or (b) by another person at R’s request or with R’s assent or acquiescence.

(6) In cases 3 to 6 it does not matter (a) whether R requests, agrees to receive or accepts (or is to request, agree to receive or accept) the advantage directly or through a third party, (b) whether the advantage is (or is to be) for the benefit of R or another person.

(7) In cases 4 to 6 it does not matter whether R knows or believes that the performance of the function or activity is improper.

(8) In case 6, where a person other than R is performing the function or activity, it also does not matter whether that person knows or believes that the performance of the function or activity is improper.

Section 7. Failure of commercial organisations to prevent bribery

(1) A relevant commercial organisation (“C”) is guilty of an offence under this section if a person (“A”) associated with C bribes another person intending (a) to obtain or retain business for C, or (b) to obtain or retain an advantage in the conduct of business for C.

(2) But it is a defence for C to prove that C had in place adequate procedures designed to prevent persons associated with C from undertaking such conduct.

What should employers do?

Since those who commit an offence under the Bribery Act can be either fined, imprisoned or both, it is very important that employers ensure they have taken all necessary steps to avoid breaking the law. As has been noted above, Section 7(2) of the Act says that it is a defence if the organisation had in place “adequate procedures, designed to prevent persons associated with [them] from undertaking such conduct”.

So how can this be undertaken and how are ‘adequate procedures’ defined so as to satisfy the requirements of the Act?

The first step to be taken is to draft and implement a robust Anti-Bribery and Anti-Corruption policy. This should cover all aspects of corruption and bribery, including instructions on what to do if bribes or inducements are offered. Employees should be required to re-read the Anti-Corruption/Anti-Bribery Policy annually and sign a confirmation that they have done so.

The summary dismissal provisions of the employment contract should include a specific mention of the policy, so employees are left in no doubt of what will happen to them if they are found in breach of the policy, even if – as in the case of Blake – there is insufficient evidence to meet the criminal standard of proof for bribery. The employment contract should also include a separate provision that obliges employees to comply with the employer’s policies and procedures, including the Anti-Bribery and Anti-Corruption Policy.

A risk assessment programme should be established and monitored to ensure that the possibility of bribery is minimised.

To ensure that employees are made aware of – and understand – the obligations placed upon them, the employer should instigate a regular training programme for all staff. Such obligations might include reporting any attempts to bribe a member of staff, any member of staff who accepts such a payment, requests by third party organisations for facilitation payments, and so on. Employers should ensure that a signed register of all employees attending training is maintained. An organisation should ensure that its bribery prevention policies and procedures are embedded and understood throughout the organisation through internal and external communication that is proportionate to the risks it faces. Communications show that the company takes anti-corruption procedures seriously, rather than simply ticking the compliance box.

If, after all this has been put in place, an employee breaches their employer’s anti-corruption or anti-bribery policy, this could be classed as gross misconduct and immediate dismissal could result.

In the case of Blake, CCTV evidence proved very useful in uncovering discrepancies in her account. Employers may consider making use of this technology but care should be taken that the guidance in the Data Protection Code of Practice for surveillance cameras is followed to avoid any procedural irregularities jeopardising a successful investigation.

rradar is a specialist litigation and commercial law firm that uses legal expertise and digital tools to proactively manage, advise and deliver business solutions to reduce legal risk.