26th January 2012
Rosie Brass and Nick Burrows
On 1 July 2011 the Bribery Act 2010 came into force and its far reaching ambit extends to schools, in particular independent schools.

Offences under the Act
The Act introduces 4 new criminal offences:-

1. An offence of bribing (offering, promising or giving a financial or other advantage).
2. An offence of being bribed (requesting, agreeing to receive or accepting a financial or other advantage).
3. An offence of bribery of foreign public officials.
4. An offence by a corporate of failing to prevent a person associated with it from bribing other people, even if it was unaware of the bribe (‘Corporate Offence’).

The first two offences are committed if the intention is to induce improper performance by the recipient. Conduct will be considered improper if it amounts to breach of an expectation that a person will act in good faith, impartially, or in accordance with a position of trust.  

Penalties under the Act
An individual found guilty of an offence under the first 3 offences may be imprisoned for up to 10 years and/or receive an unlimited fine. A school found guilty of the Corporate Offence may receive an unlimited fine.

Bribery Risk for Schools
Schools are at risk of liability under the Act due to the expectation amongst parents that they will conduct their business impartially and in good faith.  Individual governors and members of teaching staff are capable of committing an offence as they occupy positions of trust, and independent schools which are incorporated as companies may commit the Corporate Offence as by charging fees, they are carrying on the relevant trading required under the offence.

By way of example, it’s certainly foreseeable that the following are areas where independent schools may attract the risk of bribery:-

• The school accepting donations from parents of prospective pupils in return for securing a place for their child at a school, or parents of current pupils in return for their child receiving excellent predictive grades when applying for University, without following the school’s normal procedures.
• A member of teaching staff accepting an extravagant gift from a parent to induce them to provide favourable treatment to their child.
• A member of the senior management team (‘SMT’) accepting a charitable donation from an organisation tendering for a contract with the school and the school favouring donors when picking its suppliers.
• A member of teaching staff accepting an invitation from one of the school’s suppliers to attend a hospitality event whereby the supplier intends to inappropriately influence the tender process.
• The school offering free or subsidised places for children of members of the SMT at feeder schools with the intention of them promoting the school at the feeder school.

Parents buying small gifts for their children's teachers at Christmas or the end of the academic year, or suppliers taking members of the SMT out for lunch, is however permissible under the Act provided that the gift or hospitality is genuine, proportionate, justifiable and not intended to secure an improper advantage. In practical terms, the simplest way to assess the risk of the gift or hospitality being considered a bribe would be to ask, in relation to each item, “Would another local independent school consider it to be excessive or suspicious”?

Anti-Bribery Steps
All schools should take the following steps to minimise the risk of liability under the Act:-

• Carry out an anti-bribery risk assessment to determine the potential risk scenarios throughout the school.
• Appoint a senor individual to be responsible for overseeing the anti-bribery procedures.
• Produce and implement a clear anti-bribery policy covering donations, gifts and hospitality.
• Strictly enforce the anti-bribery policy with a zero tolerance stance on any form of bribery.
• Maintain a register of donations, gifts and hospitality received over an appropriate threshold.
• Provide regular training to all staff on the anti-bribery procedures to be followed and what is acceptable, and include a right of termination in contracts of employment for breach of the Act.
• Amend the existing whistle-blowing policy to cover reporting bribery and investigating any allegations of bribery.
• Undertake due diligence on all business partners and suppliers before contracting with them.
• Prohibit gifts to public officials.
• Consider the implications of all links overseas as an offence will be committed under the Act regardless of where it takes place.

There is a full defence to the Corporate Offence if a school can show that it had adequate procedures in place to prevent bribery from being committed by those performing services on its behalf, highlighting the importance of taking the above anti-bribery measures.

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