Anti-bribery and anti-facilitation of tax evasion clause

To reduce the risk of bribery or the facilitation of tax evasion by employees, include our clause in employment contracts.

Bribery

Your organisation can be guilty of a criminal offence under the Bribery Act 2010 where it has failed to prevent bribery by a person associated with it. The offence is committed where a person associated with your organisation bribes another person intending either to obtain or retain business, or to obtain or retain an advantage in the conduct of business, for your organisation. The scope of the offence is broad, both in terms of the people who may be held to be “associated” and its extra-territorial effect. Associated persons are those who perform services for or on your behalf and it includes employees, workers and agents and may also include contractors. However, you have a statutory defence if you can demonstrate you had “adequate procedures” in place which were designed to prevent associated persons from bribing. What procedures you need to have will be proportionate to the size of your organisation and the level of risk it faces but, as a minimum, you should have an Anti-Bribery Policy which is clearly communicated to staff, and we’ve supplemented this with our Anti-Bribery and Anti-Facilitation of Tax Evasion Clause.

Facilitation of tax evasion

A company or partnership can also be guilty of a criminal offence if it has failed to prevent the facilitation of tax evasion by an associated person. Associated persons include employees, workers and agents, or any other person who performs services for or on your behalf. In practice, if a client of yours has committed criminal tax evasion and one of your employees acting in that capacity behaves deliberately and dishonestly to aid that client in tax evasion, your business can be guilty of the corporate offence. However, there’s again a statutory defence available if you can prove that, when the tax evasion facilitation offence was committed, you had reasonable prevention procedures in place which were designed to prevent associated persons from committing tax evasion facilitation offences. So, our clause also supplements our Internal Fraud Policy. In both cases, our clause will help towards invoking the relevant statutory defence should you ever need to do so (but it’s unlikely, by itself, to establish the defence).

Clause content

Our clause includes a series of actions and prohibitions that the employee must comply with, including:

• complying with all applicable laws relating to anti-bribery and anti-corruption, and with the above policies and any related policies and procedures
• not engaging in any conduct which could constitute an offence under the Bribery Act 2010
• not engaging in any form of facilitating tax evasion
• immediately reporting any knowledge or suspicion of bribery or facilitation of tax evasion in the workplace (whether engaged in by themselves or by another employee or officer).