Rahman Ravelli | View firm profile
The government wants corporate executives charged when their
staff carry out offences such as fraud and money laundering. How can you make
sure you’re not one of those prosecuted?
The government wants to take the fight against business
crime right into the boardroom in a way that has not been seen before.
Attorney General, Jeremy Wright, has said the government is
considering prosecuting those at the top of a company if any of its staff commit
fraud or money laundering. Until now, such “failure to prevent” offences have
only covered bribery (under the Bribery Act) and tax evasion. Extending their
scope will place huge responsibility on those running a company.
So what can senior executives do to prevent themselves being
prosecuted for the wrongdoing of those they employ?
Adequate measures
These latest proposals are about punishing breaches of the
law. But the Attorney General says they are also an attempt to promote a
culture of corporate responsibility – an attempt to encourage prevention of
wrongdoing rather than just reacting to it and prosecuting it.
At the moment, it is difficult for the authorities to
prosecute corporate executives for wrongdoing carried out by their staff. When
an employee is found to have, for example, laundered money, the evidence trail
can rarely be followed all the way to the top of the company’s staff structure.
Just last month, US bank Wells Fargo dismissed 5,300
employees as a result of a scandal involving large-scale mis-selling of bank
accounts and credit cards. The bank is contrite and has paid $185 million to
settle the matter. Yet the question remains, what could and should have been
done to prevent it? And who in the boardroom should be to blame?
If the new proposals outlined in this article are
introduced, any such cases arising in the UK are likely to see senior company figures
in the dock.
This, however, will not be necessary if certain steps have
been followed. Those in the boardroom will become liable for the crimes of
their staff if they had not taken adequate measures to prevent those working
for them breaking the law. But if they have taken adequate measures then they
have a defence.
Putting it simply, they need to design out the problem: take
careful steps to reduce the potential for employees to indulge in business
crime.
Potential
The potential for wrongdoing being committed by any staff at
a company has to be assessed and then acted upon. Senior staff must introduce
new procedures or change existing ones so that it is as difficult as possible
for any employee to commit the offences covered by the new proposals.
If need be, executives can hire business crime lawyers to
investigate the possibility of offences being committed and then suggest ways
in which this can then be designed out. This is done by making sure the
potential for wrongdoing is removed from the way the company functions. Changes
to the way individuals and departments work – both independently and with
colleagues and third parties – can make it harder for illegal acts to be
committed. Importantly for senior executives, these changes provide a strong defence
should the new proposals become law and they find themselves investigated
regarding offences committed by staff.
Encourage
However, if staff do still break the law, the company needs
to have clear and appropriate whistle blowing procedures in place. Such
procedures must be regularly reviewed and publicised if they are to be of
value.
Encouraging staff to report their suspicions of wrongdoing
and assuring them that their concerns will be investigated can go a long way to
developing an anti-crime culture in a workplace.
Developing such a culture of legal compliance is another way
in which senior company figures can show investigators that they should not be
prosecuted if their staff have broken the law. Being able to show that you have
carefully devised and thoroughly implemented such measures will be a robust way
of defending yourself should you ever be investigated.
Vulnerable
The key is to know what potential there is for your
workforce to commit business crime and then take action to both prevent it and,
should it still happen, allow staff to report it. Failure to do either of these
will leave you very vulnerable to prosecution under these new proposals.
These proposals are not a gimmick. They are the government’s
way of making sure that those in senior positions do not try and get by doing
the bare minimum when it comes to tackling business crime. A failure to pay
attention to – or take action regarding – the illegal behaviour of your staff
is now more likely to lead to you being prosecuted for their wrongdoing.
The challenge in business now is to make sure everything
possible has been done to prevent staff bringing legal trouble on themselves,
the company and the individuals running it.