Situation (1):  An express request for a bribe is made to you (but is not accompanied by threats)

Example:  You are informed that, in order for your employer to receive a contract payment due to it, you will need to pay, on behalf of your employer, 10% of the due amount to a manager of the paying company as a bribe.

Legal position:  If you pay a bribe in this situation, then it is likely that you and your employer will be liable for bribery.

Caution:  Do not do or say anything which could put you or another person in danger.

Suggested direct action:

• Politely refuse to pay the bribe.

• If the demander persists with the request for a bribe, politely inform her/him that your employer and employer’s legal jurisdiction prohibit payment of bribes and that, if you pay the bribe, you will have to report it to your employer who will then report it to the demander’s employer and the criminal authorities.

• If the demand is made by a government official, and there are government procedures in place to report the official, then inform the official that these procedures would require you to report.

• If the situation is not resolved, ask to see a more senior official or manager.

• If this request is refused, or if the senior official or manager is unhelpful, say that your company will make a formal complaint to one or more of the relevant government department or company which is responsible for making the payment, the project owner, the funders, your embassy, and the criminal authorities.

• The above steps need not be taken at the same time, or by the same person.  It may be appropriate merely to take the first step above (i.e. refuse to pay the bribe), and then discuss the matter with an appropriate manager of your employer (e.g. the compliance manager), who will determine the next steps to be taken.

Make a record of the event:  Make a detailed record of the event.  If you were accompanied by a colleague who witnessed the event, request the colleague also to make a written record.

Suggested reporting of the corruption:  If you believe that your employer has proper reporting procedures, and that you will not suffer adverse discrimination by informing your employer, then:

• Report the incident to the relevant officer of your employer (e.g. the compliance manager).

• Request, if necessary, that your identity be kept confidential by your employer.

• Provide your employer with copies of your written record (and your colleague’s if applicable).  Ensure that you keep the originals of these documents unless you feel that it is safe to hand them to your employer. If you hand over the originals, keep copies.

If you do not believe that your employer has proper reporting procedures and/or you are concerned that making a report may have an adverse impact on you, then consider the situation carefully before deciding whether or not to make a report to your employer.

If you do not make a report to your employer or if, having made a report to your employer, you think that the employer is not taking adequate action, then consider reporting (anonymously or otherwise) to: any independent assessor or monitor appointed in relation to the project; your local embassy; and/or the criminal authorities.

Situation (2):  An express request for a bribe is made to you (and is accompanied by implicit or explicit threats to your safety or that of another)

Example:  You are stopped by an armed policeman at a road-block. He falsely states that your tyres are defective, but says that he will let you drive on if you pay him $10.   He acts in a menacing manner.  You fear that he may harm you and/or your passengers if you do not pay.

Legal position:  In a number of jurisdictions, you would not be liable for bribery if you made a payment in this situation.  However, this may not be the case in all jurisdictions.  Even in those jurisdictions where you would not be liable, you may need, in order to avoid liability, to be able to prove that you reasonably feared for your or your passengers’ safety.

Caution:  Do not do or say anything which could put you or another person in danger.

Suggested direct action:  If your personal safety or that of another person would be endangered by a refusal to pay, then pay the bribe. Even if the making of threats is not a defence to liability, it is better to pay the bribe than to endanger your or another person’s safety.

Make a record of the event:  As for Situation (1).

Suggested reporting of the corruption:

• If it is a defence to a charge of bribery that you paid in circumstances where you reasonably feared for your safety, then make reports as in Situation (1).

• If it is not a defence to a charge of bribery that you paid under threat of personal harm, then you may be incriminating yourself by making a report. Take independent legal advice before taking any further action. Alternatively, or in addition, your employer may be able to provide you with confidential advice in this situation. You will also need to consider your position if reporting corruption is a legal obligation in the particular jurisdiction, and so, by failing to report the incident, you may be committing a further offence.

Situation (3): A payment is demanded from you which you suspect may include a hidden bribe

Example:  An “expediting” fee is required by a government official to issue a permit in circumstances where the legitimacy of the fee is not clear, or a fee is demanded which the official claims is legitimate but which is higher than the published fee or appears to be disproportionately high given the action required.

Legal position:  If you make the payment knowing or suspecting that it includes a bribe, and it does include a bribe, then it is likely that you and your employer will be liable for bribery.

Caution:  Do not do or say anything which could put you or another person in danger.

Suggested direct action:

• Politely ask for documentary proof that the sum is payable, stating that you must account for all expenses to your employer, and that you will need an official receipt.

• If documentary proof and receipt are not provided, refuse to pay.

• If the demand is made by a government official, and there are government procedures in place to report the official, then inform the official that these procedures would require you to report.

• If the official refuses to issue the necessary permit or whatever is required, ask to see a senior official.

• If this request is refused, or if the senior official is unhelpful, say that your company will make a formal complaint to one or more of the relevant government department, the project owner, the funders, your embassy, and the criminal authorities.

• The above steps need not be taken at the same time, or by the same person.  It may be appropriate merely to take the first two steps above (i.e. ask for proof, and, if not satisfactory, refuse to pay), and then discuss the matter with an appropriate manager of your employer (e.g. the compliance manager), who will determine the next steps to be taken.

Make a record of the event:  As for Situation (1),

Suggested reporting of the corruption:  As for Situation (1).

Situation (4):  A situation arises where it appears that a bribe is expected from you in order for a function to be carried out

Example:  Inordinate delay in obtaining a permit suggests that the official is expecting a bribe even though no express demand has been made.

Legal position:  If you pay a bribe in this situation, then it is likely that you and your employer will be liable for bribery.

Caution:  Do not do or say anything which could put you or another person in danger.

Suggested direct action:

• Politely ask the official for the reasons for the delay.

• If the reasons fall within any of Situations (1) to (3) above, then follow the advice in the appropriate section.

• If the reasons are inadequate, ask to see a senior official.

• If the request to see a senior official is refused, or if the senior official is unhelpful, say that your company will make a formal complaint to one or more of the relevant government department, the project owner, the funders, your embassy, and the criminal authorities.

• The above steps need not be taken at the same time, or by the same person.  It may be appropriate merely to take the first step above (i.e. ask for reasons), and then discuss the matter with an appropriate manager of your employer (e.g. the compliance manager), who will determine the next steps to be taken.

Make a record of the event:  As for Situation (1).

Suggested reporting of the corruption:  If you believe that the inaction is due to corruption rather than incompetence or if you are unsure as to the cause, then report as for Situation (1).

Situation (5):  A senior manager requires you (as a more junior employee) to participate in bribery or fraud

Example:  You are requested by a senior person in your company to participate in:

• Bribery, in order to help the company to make a profit or win a contract, or to obtain a certificate, permit or payment.

• Fraud, in order to help the company increase its profit or avoid loss or liability (for example, by submitting an inflated claim, or by concealing a defect so as to avoid the company incurring rectification costs).

• Bribery and fraud, where, for example, as company legal adviser, you are asked to draft an agency agreement which you suspect conceals a bribe arrangement.

Legal position:  If you participate in the activity knowing or suspecting that bribery or fraud is involved, it is likely that you and your employer will be liable for bribery or fraud. It will not be a defence for you to say that you were requested to commit the offence by a senior person, or that you were not personally benefiting, or that you thought it was normal business practice. If you are caught, it is possible that the company’s senior management will disassociate themselves from you so as to avoid incurring liability themselves.

Caution:  Do not do or say anything which could put you or another person in danger.

Suggested direct action:  Refuse to participate in the bribery or fraud – even if you are threatened with dismissal or demotion. It is not worth it to you personally. If you participate and are caught, you face personal criminal liability and possible imprisonment.

Make a record of the event:  As for Situation (1).

Suggested reporting of the corruption:  As for Situation (1).

Situation (6):  You discover bribery or fraud in your company or its business partners (and you are not a senior manager)

Examples:

• You are involved in activity which you did not initially realise was corrupt, such as where you are preparing a claim on the basis of records that you discover have been falsified.

• You discover that someone working for your own company, or for one of your company’s business partners, has taken corrupt action, such as paying a bribe or approving the delivery of defective materials.

Legal position:  If as a junior employee, you were not involved in the activity, it is unlikely that you would be liable. If you were involved in the activity, but you did not know or suspect that there was any bribery or fraud involved then, it is unlikely that you would be liable for taking part in the activity. However, if you continue to take part in the activity once you have discovered or suspect that there is bribery or fraud, then it is likely that you will incur liability.

Caution:  Do not do or say anything which could put you or another person in danger.

Suggested direct action:  Play no part, or no further part, in the activity in question.

Make a record of the event:  As for Situation (1).

Suggested reporting of the corruption:  As for Situation (1).

Situation (7):  As a senior manager, you discover that an individual or organisation for which you have management responsibility has paid a bribe or committed fraud

Examples:

• A project manager discovers that a site manager over whom she/he has management responsibility has been taking bribes to approve short delivery of materials.

• A commercial director discovers that a claims manager over whom she/he has management responsibility has been submitting false claims.

Legal position:  It is likely that you would not be liable for bribery or fraud while you did not know or suspect or turn a blind eye to the possibility that there was any bribery or fraud taking place. However, once you have discovered or suspect that there is corruption, then, as you are the person in authority, it is possible that you will incur liability if you do not make full enquiries and take all reasonable steps to put a stop to the corruption.

Caution:  Do not do or say anything which could put you or another person in danger.

Suggested direct action:

• Make full enquiries to establish what has happened and whether any other company employees are involved.

• If the corruption is continuing, then take all reasonable steps to put a stop to the corruption

• Require all relevant documents and evidence to be collected together.

For further follow up action to be taken by your employer, see Dealing with Corruption: Actions by Organisations.

Make a record of the event:  As for Situation (1).

Suggested reporting of the corruption:  If you are not a director, report the matter to the relevant responsible director. If you are a director, report the matter to the board. For further reporting by your employer, see Dealing with Corruption: Actions by Organisations.

Situation (8):  As a senior manager, you discover that your company is involved in a cartel

Example:  Several companies agree that they will share the market. When they tender for a particular project they secretly agree in advance which of them will win the project and at what price. The other companies then bid at a higher price in order to ensure that the selected company is the successful bidder.

Legal position:  As for Situation (7).  In addition, in a number of jurisdictions, immunity from prosecution may be given to the first company in a cartel to report the cartel to the authorities.  This immunity often extends to the reporting company’s employees.  Even if it is not the first to report the cartel, some mitigation of liability or penalty may be available if a company reports the cartel and/or co-operates with the authorities.

Caution:  Do not do or say anything which could put you or another person in danger.

Suggested direct action:  As for Situation (7).

Make a record of the event:  As for Situation (1).

Suggested reporting of the corruption:  As for Situation (7).

Situation (9):  You discover that a competitor of your employer has secured a contract through bribery

Example:  Your company is both the best technical and the lowest priced bidder. Despite this, one of your competitors wins the contract. You receive a tip-off that a bribe was paid by your competitor.

Legal position:  It is unlikely that you, as an individual, would incur liability in this situation provided you have not been complicit in any way in the bribery.

Caution:  Do not do or say anything which could put you or another person in danger.

Suggested direct action:  Make full enquiries to establish what has happened. Require all relevant documents and evidence to be collected together. For further follow up action to be taken by your employer, see Dealing with Corruption: Actions by Organisations.

Make a record of the event:  As for Situation (1).

Suggested reporting of the corruption:  As for Situation (7).