Take a business, X Limited. It offers a range of “work experiences” from formal assessed fortnights for likely future employment candidates to a casual few days for the offspring of “friends and family”.  A good showing in the second category can get an interested individual into the first, so those slots are reasonably sought after.

One of the last intake to the second category performed miserably. X Limited would normally have let the placement run its course, offered some gently constructive feedback at its end (“Please don’t ever come back”) and thought no more about it.  The complicating factor is that the individual in question is the child of someone senior at one of X Limited’s bigger customers.

Cue crisis of conscience – does it now do the Right Thing, reject the individual for any chance of future employment and front it out with the parent at obvious possible risk to the business relationship or does it advance the candidate beyond the point which its capabilities would normally have dictated just to keep the parent sweet and hence (hopefully) retain or expand the business? [We are presuming here that it has already discarded the possibility of selling its rejection of the child as a positive virtue – if we regarded your offspring as bright enough to work here notwithstanding very considerable evidence to the contrary, you wouldn’t want to use us – admirable in its sheer cojones, maybe, but unlikely to appeal to any parent with the slightest pride in its progeny].  Specifically, would offering that individual a prospect of further progression towards a permanent job potentially constitute a breach of the Bribery Act 2010?

Section 1 of the Act makes it an offence for a person to give a financial or “other advantage” to another person, intending to induce that other person to perform “improperly” an activity carried out in the course of their employment.  Under Section 2, the person who requests or accepts such an advantage may also commit an offence.  There is no express reference to this situation in the statute, any decided case authority or the Ministry of Justice’s 2011 Guidance to the Act, but superficially this would seem a clear example of the sort of reciprocal back-scratching which the Act was partly enacted to prevent.

Lessons for employers

The closest the Guidance gets is probably in relation to corporate hospitality. It is accepted that the entertainment of clients or targets by a business will generally be legitimate if it does no more than “reflect a desire to cement good relations and show appreciation … [and/or] to improve the image of [the business] as a commercial organisation, to better present its products or services or to establish cordial relations”, all perfectly sensible steps to procuring favourable consideration of the business by that client or target.  However, in the very next paragraph in the Guidance we find this: “The recipient should not be given the impression that [it is] under an obligation to confer any business advantage or that the recipient’s independence will be affected”.  Therefore seeking a business advantage is fine, but expecting it is not.  Generating evidence of any express link between progressing the undeserving intern and receipt of more or any work from the client would therefore be most unwise.

There is the additional hurdle to liability under the Bribery Act that the “other advantage” (i.e. not excluding the intern from further consideration) must be intended to induce the client to act “improperly” – this would be very hard to prove beyond reasonable doubt in any circumstances where X Limited’s pure business proposition to its client is objectively little different from any of its competitors, such that there were equally valid (though perhaps differing) reasons for picking any of them.

So the Bribery Act does not put an end to the “grace and favour” intern, nor to helping a client’s sullen and unwilling offspring add a line or two to an otherwise barren CV. Just be careful that no one makes any express or implied suggestion to the client that you expect your concession to be reflected in work coming the other way.

While you can try to impose an internship policy governing who gets in and the admin around them, be awake to the likelihood that some of your client-facing employees may regard themselves as above such things and may make promises to clients regardless. A periodic written reminder from the top of the business will go a long way to allowing your company to show that it has taken reasonable precautions to prevent this and so escape the risk of a Bribery Act allegation.