This follows his recent suspension in connection with allegations (which are vigorously denied) that he and fellow FIFA member Mohamed bin Hammam were implicated in the bribery (to the tune of $1 million) of 25 members of the Caribbean Football Union, as part of Mr bin Hammam's abortive bid for the FIFA Presidency. At the time of writing, the latest reports indicate that a leaked FIFA ethics committee report into the matter states there is overwhelming evidence of the payment of bribes in support of bin Hammam's bid for the presidency, and that Mr Warner was an accessory to corruption.
With the Bribery Act 2010 coming into force tomorrow (1 July 2011), this whole affair is a timely reminder for HR professionals of the business risks posed by bribery and corruption.
Of course, bribery and corruption has always been an area of business risk. But with the legal and regulatory landscape changing, the risks for employers are on the increase. The potential consequences of committing an offence under the Bribery Act are extremely serious: unlimited fines and very lengthy prison sentences. Employers should review their businesses, policies, procedures, training programmes and controls to ensure they are managing their risks.
Bribery is widely defined in the Act. It can include many common business practices, such as providing clients with gifts, hospitality and entertainment, depending on the circumstances. The Act provides for corporate and personal criminal liability by introducing four new criminal offences (bribing another, being bribed, bribing a foreign public official, and failure by a commercial organisation to prevent bribery). This latter offence is of particular note for HR. It works by focussing on situations in which an organisation fails to prevent an "associated person" from bribing a third party for the benefit of the organisation. The definition of "associated person" is itself very wide. It includes not only employees, but also others such as agents, consultants, agency workers, and even volunteers. In FIFA's case, the relevant parties involved would plainly be "associated persons", even though they are unlikely to be employees.
This illustrates one of many tricky areas for HR, which is the potential liability for the actions of consultants, agents and the like (even those based abroad), over whom employers traditionally have not exercised much control. The contractual arrangements with such parties should be reviewed and amended if necessary. Equally, it may be necessary to review other existing documents including employment contracts, disciplinary rules and procedures, bonus and commission schemes (which unintentionally can operate to incentivise rogue employees to engage in corrupt practices) and whistleblowing policies.
There is also the potential for employment discrimination allegations to arise, such as the suggestion that the application of particular controls and policies in certain territories represents racial stereotyping. But equally employers are expected to consider the corruption risk profile of their business (for example, in terms of any business in particularly high-risk developing countries) and to ensure that any particularly high-risk business is subject to appropriate risk management. Employers who decide to adopt particular policies in connection with business in certain countries or regions should ensure that there is objective evidence and a paper trail to support their approach.
In planning a corporate anti-bribery and corruption strategy, particular account should be taken of the Ministry of Justice's guidance. It is clear that the MoJ expects organisations to exhibit a pro-active approach to addressing bribery and corruption risks within their businesses, and a joined-up strategy that is open, transparent and supported from the top down. Senior level HR buy-in to tackling bribery and corruption risks will be vital. There are no easy answers, and this is not a "one size fits all" area of law and compliance. Consequently, the MoJ's guidance is useful in its commitment to proportionality, and its inclusion of worked examples and indications of the sort of steps that employers need to consider in order to protect themselves. If you have not already done so, the time to act is now.
Andreas White (pictured) is an employment partner at Kingsley Napley LLP
