The UK’s Bribery Act of 2010: The Obligations and Risks It Imposes on US Employers with Business in the UK
The UK Bribery Act is expected to come into force shortly. The Act was implemented in response to pressure on the UK to reform its outdated anti-corruption legislation. The scope of the Act is broader than that of the Foreign Corrupt Practices Act (“FCPA”). Whereas the FCPA only applies if the recipient is a foreign official, the Bribery Act 2010 will cover all bribes, regardless of the recipient’s status. The new Act has extra-territorial effect and has implications for any corporation or group carrying on part of its business in the UK, regardless of where it is incorporated.
The Serious Fraud Office (“SFO”), the UK agency charged with investigating and prosecuting corruption, has backed up its threats of real action to enforce the Act with a series of prosecutions in 2010 under the existing legislation. Companies based in the US also should be aware that US regulatory agencies have been achieving results working alongside the UK authorities in order to bring criminal proceedings on both sides of the Atlantic, leading to the prosecution of companies and individual officers.
The Act creates four new offenses. These are:
(1) Bribing, giving, promising or offering a bribe
(2) Being bribed, requesting, agreeing to receive or accepting a bribe
(3) Bribing a foreign public official
(4) Failing to prevent bribery where an associated person pays a bribe to obtain or retain a business advantage for a commercial organization.
The basic bribery offenses of bribing and receiving a bribe apply to acts or omissions that take place in the UK or outside it if one of the parties involved has a close connection with the UK (for example, if a party is a UK registered company or UK resident).
The Act also imposes strict liability on commercial organizations that fail to prevent payment of a bribe in connection with its business by those acting on their behalf (so called “associated persons”), where the bribery was intended to obtain or retain a business advantage for the company . “Associated person” includes people who perform services for, or on behalf of, the commercial organization regardless of their capacity. This covers employees, agents, subsidiaries and even joint venture partners.
The strict liability offense applies not only to bodies incorporated in the UK, but also covers foreign companies which conduct business there even if the offense occurs elsewhere. As a result, a US group with a UK subsidiary, could still incur UK liability for payments made by a sister company based in a third country to persons there. The offense applies to companies even if they only possess a minor presence in the UK. Furthermore, there is no requirement for the associated person to have any connection with the UK. Read more
Bill Wernz, the former Executive Director of the Office of Lawyers’ Professional Responsibility, has written an article for Minnesota Lawyer (July 12, 2010, Vol. 14, No. 28) that focuses on ethical issues recently addressed in our blog. With approval from Minnesota Lawyer, Bill’s article is reprinted below.
The article was written by Brian McDermott, who is the self-described, Chief Storyteller, at his consulting firm,GrowthWorks Inc., where he specializes in helping leaders facilitate change, innovation and improvement. Brian is the co-author of Leading Innovation: Creating Workplaces Where People Excel So Organizations Thrive, and Time Out for Leaders: Daily Inspiration for Maximum Impact. Brian currently is working on a new book which mirrors the title of this article, Everything You Ever Wanted to Know about Leadership . . . and Should Have Asked Your Kids.
Brian Blogs at http://growthworksinc.typepad.com/growthworks_inc/. He would love to hear your kid-inspired lessons about life and leadership: email@example.com.
Everything You Ever Wanted to Know about Leadership . . . and Should Have Asked Your Kids
I have a theory that if I listen well enough, everything I need to know about business and leadership I can learn from kids.
I’ve been paying attention for a long time – first for 20-plus years as a journalist, and for the last decade as a facilitator and consultant. I work with bosses who want to lead teams that aren’t stuck doing the same old things the same old ways. The lessons keep coming fast and kid-curious about what it really takes to treat employees – people – as any organization’s most important resource. Here are four youth-inspired insights I find essential:
#1 Let ’em Do Something that Matters . . .
Shortly after starting high school, my daughter, Callie, gave me a no-holds-barred review of one of her classes. It wasn’t pretty. She came down heavy on the teacher, delivering this assessment with all the drama you’d imagine from an exasperated 15 year old: “All he does is talk. He never lets us do anything.” Keep in mind this was a course she wanted to take, a subject she seemed eager to master, a class she, as a freshman, initially felt lucky to get into. Her pain was complicated by disappointment. And her teacher – her leader – never really corrected his course.
Step into the workplace and start looking for comparables . . .
One small example: Business meetings. They don’t last a semester like high school courses, thank your lucky stars, but there’s plenty of evidence adults hate ’em and suffer the same kind of gloom Callie felt being lectured to instead of being engaged.
Research out of places like the Annenberg School for Communication at the University of Southern California and the University of Minnesota estimates executives spend 40 to 50 percent of their time in meetings. Other studies show business professionals say half their meeting time is unproductive, and that up to 25 percent of that time is maddeningly frittered away on irrelevancies.
That’s not good for business because, in theory, meetings are where a lot of work is supposed to get done, and where leaders have to be at their best.
Even worse news is that 65 percent of all workers in the U.S. are dissatisfied with their jobs, according to a 2010 survey by The Conference Board. That’s more than six of every 10 people you work with saying, “I’d rather be doing something else.” With some 140 million people in the American workforce, that’s a lot of squandered potential; unhappy workers are not particularly productive.
What’s the antidote?
Give the people you lead opportunities to do some important work. Stop talking. Start listening. Give people a chance to roll up their sleeves and make a contribution. In reporting the sobering Conference Board stats about the high levels of worker dissatisfaction, program director John Gibbons says, “Challenging and meaningful work is vitally important to engaging American workers.”
Most of the work I do now is for leaders who want help creating meetings, process, and projects that grown-ups won’t hate – working sessions that have purpose, engage people strategically and creatively in doing stuff that matters, and that produce measureable results. We’re usually pushing for new strategies, major changes, innovation and breakthroughs, increased efficiencies, and improvement.
I have a strong desire to stay in business, and an ego too fragile for the sights and sounds of rolling eyes and sighs and heads thumping onto tabletops in response to what I do. So, I’m diligent about focusing on what everybody else is bringing to the conversation. One of the most important things I’ve learned in my work as a journalist and as a facilitator and consultant is that other people know a lot. And one of the most effective ways for me to lead them to new ideas and solutions is to tap into the wisdom they bring to the room. To connect knowledge, creativity and human spirit.
At GrowthWorks, we developed a model we call LOOP Leadership (Linkage, Obstacles, Opportunities,Plans). We use it for everything from designing non-boring hyper-productive meetings to doing individual executive coaching. LOOP helps create engagement in meetings and in jobs because it forces focus on pressing real-world business issues and because it actively involves people in learning about and dealing with those issues:
Linkage. A vital early step in “letting ’em do something” is to create clarity and ownership for the players. Whether you’re planning a meeting agenda or assigning a yearlong project, draw a connection to a specific business issue. Then help people answer a few key questions: What is the ultimate goal? What is my role in contributing to that goal? Why is this important – to me, to our team and to the company?
Obstacles. Sometimes the most important thing you can do with any project is identify what’s blocking your goals. As a leader, set the tone. Acknowledge there are barriers, and examine the risks in not overcoming them and of not challenging the status quo. That’s not easy, of course, because we’re talking about creating an environment where there’s openness, safety and authentic dialogue about longstanding practices based on obsolete beliefs, procedures, policies and habits that may no longer serve a useful purpose but are protected nonetheless. We call them Sacred Dinosaurs. Digging up those old bones requires laying aside egos and the need to be right. Involving people in this kind of work, however, is a potent elixir for engagement and productivity.
Opportunities. Once people understand the challenge and the barriers, turn them loose on generating ideas for improving, changing and innovating current successes and creating new possibilities for growth and success. An important element of identifying opportunities is to challenge the mindset there is only one right way to do things. What works today might not work tomorrow, so it’s important to keep asking questions, knowing that solutions always will be moving targets. Gertrude Stein, the American author who gained notoriety influencing the artistry of Ernest Hemingway and Pablo Picasso, once laid out the challenge this way: “There is no answer. There never was an answer. There never will be an answer. That’s the answer.”
Plans. The final step to letting ’em do something effectively is to clarify priorities and to make plans and personal commitments for what must be done to achieve the desired business results. Determine who will do what, by when to move toward the goal. Engaging people by asking for commitment, accountability, and reinforcement are critical to achieving sustainable results.
The objective in engaging people – using LOOP or any other approach – is to create a process and an environment that encourages people to think differently, build on each other’s ideas and develop high levels of communication, commitment and collaboration.
Think about a classroom full of teenagers. Energy and intelligence abound, as in every work team. When we bring people together, the challenge is to tap them, not turn them off.
#2 Put Your Pants on First . . .
When my son, Sean, was 3 years old, he asked me a question that 18 years later still rattles around my head almost every day, and reminds me of how important it is to keep questioning the status quo.
He used to toddle down from his bedroom in the morning is his fuzzy footy pajamas to keep me company while I got ready for the day. When I slid aside the shower curtain he’d be sitting on the closed lid of the toilet reaching up to hand me my towel. Sometimes I wouldn’t have heard him arrive. While I worked my razor he played with handfuls of shaving cream. And then while I dressed he would stand nearby the closet, watching… watching as only one with unencumbered curiosity would watch.
That morning he watched me pull a pair of pants off a hanger, step into them, latch the waist clasp, then pull down a shirt, put it on, unbutton my pants, tuck in my shirt, and re-button my pants.
He looked at me, his head tilted a bit, smiling, and asked, “Why don’t you put your shirt on first?”
Almost every morning when I dress I relive that moment and hear that question. First, I smile. Then I remind myself: Beware of doing things the way they have always been done merely because that’s the way they have always been done. There are always other ways. Maybe better ways. And if you always do what you’ve always done you always get what you’ve always got. Even a child can see that.
#3 Don’t Be Afraid of Fish Heads . . .
This lesson came in a handmade card daughter Callie sent from her Peace Corps job location in Tzactza, Peru last year for Father’s Day (celebrated annually the third Sunday in June in the US).
DISCLAIMER: If you want to score big points with a parent, send a note like the one I’m about to share with you. I’m flattered and touched to have my daughter giving me this much credit for my parenting (and I had only an instant of suspicion that she may be about to ask me for something big). I know it may seem like I’m nominating myself for some good daddy award, but I really am putting this out here because of the leadership wisdom I’m hearing in her words.
THE BACK STORY: You need a bit of background to understand the “inside” story on the fish heads that show up in the first paragraph. When Callie was 15 we took a family trip to Spain. When we ordered our first meal at a restaurant in the Plaza Mayor, near where I lived when I was a college student studying abroad, I warned that the fresh-caught trout would come with head and tail attached. Everyone thought I was joking; they had never seen that in their American-cuisine upbringing. But I wasn’t. After the initial shock it was not that big a deal. Trout is a delicate creature. Everyone ate with no major problems. But a week later at a restaurant in Nerja, along the Costa del Sol, Callie ordered another variety of fish that had a much bigger, more intimidating head. She got a bite or two in, but couldn’t go on. I was eating a delicious…wonderfully blackened swordfish steak I was planning to savor sloooowly…bite… by… bite. I was a bite or two in when I realized to make life right at that moment it would be Callie eating my swordfish. And, to enjoy the punch line that comes with her advice, you need to know there is an animal many kids keep as pets in the U.S. that are a delicacy in the Peruvian diet, and we had plans to be sharing meals on a visit with Callie shortly after her card arrived.
NOTE: The outside of this card was a head-and-shoulders photo of Callie holding a camp-fire-grilled fish in two hands, with head and tail attached, and looking as if she might swallow it whole.
The lesson in Callie’s words:
“Well, you must have done something right. It may have taken a while, but in the end you raised a daughter who isn’t afraid of fish heads. Proud? Happy Father’s Day.
“Actually I really can use fish heads to embody many of the important life lessons you have given me – to try new things even when they’re scary; to be able to laugh instead of getting angry; to look for a solution instead of despairing over a situation (Trade plates?). But most importantly, you were always there to help me out when I was struggling with these lessons (Yep, let’s trade plates.). And now I’m all grown up and munching on fried trout head. You done good, Pops. Now I get to teach you to eat roasted guinea pig! I can’t wait.”
#4 Jerks and Idiots Are Out There – If That’s What You’re Looking for. . .
Through the Eyes of a Child . . .
A mother was driving in afternoon rush-hour traffic, having just picked up her 7-year-old daughter from school. While Mom drove, the little girl worked quietly, drawing pictures in a notebook on her lap.
After a few minutes, the little girl raised her eyes, looking a little confused at her mother and asked quizzically, “Mom, where are all the jerks and idiots today?”
Mom said, “Oh honey, they’re only out when your father is driving.”
. . . the World is a Different Place.
I’m not the kind of guy who recites affirmations in the mirror to start my mornings. But anybody who’s been involved in a project I facilitated can tell you, I am a big advocate for making the choice to go through life not seeing the other drivers as jerks and idiots. I’ve seen the difference it can make in a life or a business when someone – especially a leader – chooses to approach most days with hope and optimism.
I’m so glad there are kids around to remind us about all these good ideas.