Corporate ethics and anti-corruption risk minimization procedures must be incorporated throughout a company or organisation’s operations. Particular touch points in Bribery Act 2010 compliance for Human Resources will be:
i. Recruitment Interviews
As awareness grows of Corporate Ethics as an area of possible risk, so emphasis increases on including questions on ethical decision-making and judgment in the recruitment process – in which Human Resources professionals are, of course, key. Companies are increasingly introducing ethics-based questions into their recruitment process. Participants may be asked to share an example, from a prior job or their personal life, of a difficult ethical decision and how they approached it.
In candidates’ responses, interviewees should not look only at candidate’s answers but also their decision-making process. Some ethical questions such as ‘Do you take a bribe in this situation?” are clear cut. Others however, have no clear or easy answer. They are, of themselves, difficult decisions. Increasingly, companies are training employees in Ethical Decision Making. Therefore, depending on the nature of the questions posed, a candidate should not be judged on their suitability for employment only on their answer, but also the quality of their personal process for decision-making and receptivity to training.
ii. Employment contracts
Employment contracts should introduce a clause requiring the employee to acknowledge the company’s Code of Conduct, Anti-corruption Policy and the Bribery Act 2010 and to commit to abide by them. It may also include the Competition Act and other relevant industry legislation.
Some companies require middle-to-senior management sign an annual specific undertaking to abide by these laws and policies – awarding bonuses and performance uplift being contingent upon abiding. Other companies require signing online at completion of annual online training.
iii. Induction Training
As part of their induction to the company, employees, contractors, agents and intermediaries should receive Induction Training on the company’s Code of Ethics and Anti-corruption policy, including receiving a copy of the documents. Personnel or third parties more remotely located might receive the training via Video Conference, augmented by online training and receiving copies of the Code and policy.
Record retention is an important aspect of Bribery Act 2010 compliance. A company may be called upon by the courts to demonstrate its Adequate Procedures. In demonstrating these it will be important to be able to show, for example, that in 2011 all employees received Code of Conduct training at their Induction, the names of the employees, the date on which the training was delivered and the results of any examinations/tests on these topics.
Human Resources will be the repository of this information and must keep scrupulously accurate records of training, in case called upon to furnish this to the courts in the company’s defence.
iv. Anti-corruption Training
Although designing Anti-corruption training usually sits with the Compliance or Legal function, Human Resources has an important role in advising how the training can be most impactful and most effectively rolled out. For example, providing input what has been most impactful to date in terms of optimal group numbers for training, the type of activities that have engaged participants and how to most effectively deliver training to employees in remote locations.
It is crucial that Human Resources staff attend Code and Anti-corruption training – fulfilling their requirement as employees and as Human Resources may receive questions on company Ethics and the Anti-corruption to deal with or to know how and when to responsibility to, for example, Corporate Ethics and Compliance. Human Resources be charged with responsibility – allied to their on-going roll in training – of project managing the rollout of Anti-corruption training and delivering Code and Anti-corruption Induction Training. For all these reasons, it is very important that they are readily conversant with the company’s Code of Ethics and Anti-corruption Policy.
Face-to-face workshops are most impactful for participants to actively engage with subject matter, discuss how anti-corruption challenges impact their work and to learn from peers of their experiences. Workshop training may be augmented, a few months later, by online training – to further reinforce lessons from the workshop training. Online training may, for example, be a 30 min online module covering aspects of the anti-corruption policy in scenarios requiring a range of multiple choice, true/false and interactive answers, concluded by a 10 question quiz.
To demonstrate to the courts compliance with Adequate Procedures, measurability of internal compliance and training is crucial. If technology-based approaches to training are used, such as online training or remote viewing of training videos on laptops and mobile phones, it is a crucial aspect of their design that the training providers provide the client company with data on, for example, the date and time the employee viewed the training video and their quiz test results.
v. Engaging Third Parties and Due Diligence
Under the Bribery Act 2010, companies are responsible for the acts of the employees, agents, contractors and intermediaries. Third parties and consultants represent a specific type of potential corruption-risk to companies in that their function maybe representative – for example holding discussions with foreign public officials on the company’s behalf. It is crucial therefore that systematic, recorded and auditable Due Diligence is undertaken on Third Parties. This will involve, at a baseline level, receipt of CV, an interview process and the checking of references. Further Due Diligence may be undertaken through online searches and requiring specific information on past work to be furnished by the Third Party or consultant.
On their engagement, the Third Party’s contract must include the clause to abide by the company’s Code of Ethics, Anti-corruption Policy, the Bribery Act 2010 and related legislation relevant to the industry. They must be required to complete Induction Training, whether with the company or remotely and provided a copy of the company’s Code and Anti-corruption Policy.
vi. Expenses Policy
It is imperative, particularly as claiming expenses involves dealing with money transparently, that a company provides employees with clear, accessible guidance and parameters on expenses. For example, the narrow range of situations in which it is permissible to hire a taxi rather than catch public transport, to travel First Class rather than Standard class rail and when meals and refreshments can be claimed. In the absence of clear guidance and parameters, employees may have differing judgments about what claims are permissible. Ethical ambiguity will exist.
Although claiming for a taxi to a local meeting may not be ‘wrong’, in the absence of clear guidance, differing opinions may arise among employees about claiming on expenses. Unwarranted costs may incurred by the company. A clear Expenses Policy helps all employees, by their conduct on expenses, to show respect for the company, its Code of Ethics and saves Company costs.
vii. Whistleblowing Helpline
Allied with introducing a Whistleblowing Helpline are on-going responsibilities of promoting its visibility to employees, periodically monitoring its use, reading the periodic reports on calls provided by the helpline provider and responding to reports indicating concerns or questions about corruption. In monitoring helpline use it may be relevant to conduct a staff survey containing questions checking their awareness of the helpline and perceptions of its trust. It is imperative not only to introduce the helpline but to make sure that it is serving employees as an accessible, confidential service and serving the company as a key channel of information on corruption-risk.
Human Resources have an important initial and on-going role in working with Compliance and Legal to implement Bribery Act 2010 compliance, in helping the company to minimize exposure to corruption-risk through relevant HR policy and employee contracts and ensuring the on-going impact of the company’s Code of Ethics and Anti-corruption Policy through Induction and on-going Anti-corruption training, their work in Due Diligence and active Helpline monitoring.
Michelle Witton is a Lawyer, Corporate Ethics and Compliance consultant and Director of MWEthics & Compliance - www.mwethics.com