The Department for Business Innovation and Skills released its long awaited Guidance to the Agency Workers Regulations 2010 on 6 May 2011. The Guidance is aimed at employment businesses and other businesses and organisations that are involved in the supply and use of agency workers.
While the AWR were presented to parliament in January 2010, just under two years before coming into force, for many the release of the Guidance is the trigger to taking specific action in preparation for AWR.
Agencies need to assess the impact that the AWR will have in their particular
sector and on their relationship with individual clients. End user clients use
agency workers in different ways to benefit their business depending on the type of flexibility that they require. Some clients regularly use agency
workers for very short assignments meaning that they will not necessarily
work the 12 week period required to qualify for the new equal treatment
rights. However care must be taken to monitor this because of the pauses in
assignments which may allow agency workers to qualify for equal treatment
over periods that are longer than 12 weeks.
In other cases agency workers are regularly supplied to work in assignments of over 12 weeks which will see them qualify for equal treatment. The extent to which rates of pay differs between agency workers and direct recruits of clients also varies from sector to sector and indeed from business to business.
Assignment lengths
In order to qualify for equal treatment in terms of pay and working conditions,
agency workers must work for 12 weeks in the same role with the same client.
Therefore the length of assignments will determine whether an agency worker will qualify for equal treatment.
Consequently agencies need to assess whether assignments that they typically supply workers into will result in their agency workers qualifying for equal treatment under the AWR.
The Bribery Act
The Ministry of Justice (MOJ) finally published the Guidance on 31 March and
confirmed that the Act will now come into force on 1 July 2011.
The Guidance sets out six principles to illustrate application of the Act. The principles are not prescriptive but must be tailored to the risks faced by your particular business
- the key to implementation of the principles is that each organisation takes a risk based approach to managing bribery risks and anti-bribery procedures should be proportionate to those risks.
The six principles are largely the same as those published in draft form in September 2010 though some have been reordered, renamed and expanded upon. The core principle and emphasis being on proportionality – consider the risks faced by your organisation and implement policies and procedures
that are proportionate to those risks.
Principle 1 – Proportionate procedures
The anti-bribery procedures implemented by any organisation should be proportionate to the risks faced by that organisation when taking into account the nature, scale and complexity of the activities undertaken. The procedures
need to be clear, practical, accessible and implemented and enforced effectively.
Principle 2 – Top-level commitment
Senior management should adopt and embed a zero tolerance commitment to bribery and “foster a culture within the organisation in which bribery is never acceptable.” Whatever the size, structure or market of a commercial organisation, top-level management involvement is likely to include:
• communication of the organisation’s zero tolerance commitment to all associated persons periodically (the policy should be readily available e.g. via a statement/policy on an intranet site/internet site);
• an appropriate degree of involvement in developing bribery prevention procedures) e.g. larger companies may have compliance and risk managers who develop the policy dictated by top level management, whereas
smaller companies often do not have dedicated risk management resources.
Principle 3 – Risk assessment
The organisation should assess the nature and extent of risks of bribery on a periodic basis. The organisation should then adopt and promote anti-bribery procedures that are proportionate to the size and structure, and to the nature, scale and location of the activities undertaken. The organisation will also need to consider risks associated with the particular sectors they operate in. The Guidance identifies a number of external and internal risk factors including:
• External – country risk (operating abroad – on page 32 the Guidance states that bribery risks associated with foreign markets and generally higher than those associated with the domestic market), sectoral risk (e.g. large scale construction projects), transaction risk (e.g. charitable or political contributions or public procurement), business opportunity risk (e.g. on high
value projects), and business partnership risk (e.g.working via intermediaries or within consortia);
• Internal – lack of employee training, skills and knowledge, a bonus culture which rewards excessive risk, lack of clarity of anti-bribery policy and top-level
management commitment and lack of clear financial controls.
Principle 4 – Due diligence
Organisations should carry out effective due diligence regarding persons who will potentially be performing business for or on behalf of the organisation. This due diligence should be proportionate to the risks identified. Principle 5 – Communication (including training)
The anti-corruption policies and procedures should be effectively communicated internally and externally to third parties performing services for the organisation. Include policies on particular areas e.g. decision making, hospitality and promotional expenditure etc. Individuals also need to know where or to whom they can safely raise concerns about bribery, request advice or make suggestions for improvement of policies and procedures.
The organisation may wish to incorporate bribery training into the induction procedure for new employees/agents.
Principle 6 – Monitoring and review
An organisation may face new or different risks over time, e.g. when working in new foreign markets or in a new sector. Therefore it is important for organisations to monitor and review their procedures and policies
periodically and to update them if necessary to the changes in the business or if incidents occur.
It should be clear from these six principles that it will not be enough for any commercial organisation merely to have anti-corruption and bribery policies and procedures on paper. The organisation needs to ensure that such policies
and procedures are implemented and periodically reviewed to ensure they remain fit for purpose.
The key is to implement policies and procedures that are proportionate to the risks faced by your business. Consider what competitors and others in your industry are doing.
Gifts and hospitality
The MOJ guidance states that gifts and hospitality given to improve business relations and to network will not be considered to be a bribe under the Act if they are reasonable and proportionate, are given for a bonafide business reason and are not intended to influence improper performance of a function or activity. In para26 the Guidance states that “the Government does not intend for the Act to prohibit reasonable and proportionate hospitality and promotional or other similar business expenditure intended for these purposes.” However, gifts should not be unduly lavish and should certainly not be intended to influence the recipient in their decision making.
