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Procedures to prevent infringement of provisions of The Bribery Act 2010

Approved by the ERA Board of Directors 14 July 2011.

The Bribery Act 2010 contains two general offences covering the offering, promising or giving of a bribe (active bribery) and the requesting, agreeing to receive of accepting of a bribe (passive bribery).

It also creates an offence relating to bribery of a foreign public official in order to obtain or retain business or an advantage in the conduct of business. Further it creates a new form of corporate liability for failing to prevent bribery on behalf of a commercial organisation.

Recognising the provisions of The Bribery Act 2010 the ERA Board has endorsed:-

(a) its commitment to bribery prevention;

(b) its general approach to mitigation of specific bribery risks, such as those arising from the conduct of intermediaries and agents, or those associated with hospitality and promotional expenditure;

(c) a commitment to carry out business fairly, honestly and openly; and

(d) a commitment to zero tolerance towards bribery.

In view of the above, the ERA Board has noted that the procedures specified in this paper are in place and should remain in place for the purposes of bribery prevention.

1. Proportionality

ERA operates as a company limited by guarantee within the United Kingdom.

Its licensing activities concern the educational purposes of “educational establishments” [as such expression is defined in the Copyright, Designs and Patents Act 1988 (as amended)].

2. ERA Staff and Communication

The employees of ERA are engaged under contracts of employment which include Grievance and Disciplinary Procedures approved by the ERA Personnel Committee from time to time. (The ERA Personnel Committee is an approved sub-committee of the ERA Board of Directors).

Examples of gross misconduct by a member of ERA staff include (non-exhaustively) fraud, theft, gross negligence and failure to carry out a reasonable instruction. Any activity that might be construed as bribery will be an act of gross misconduct for these purposes.

The ERA Board has instructed that each ERA member of staff is made aware of these procedures for the purposes of application of the Grievance and Disciplinary Procedures relevant to their contract of employment with ERA.

All new members of staff will be informed of the procedures required by the company to prevent bribery.

3. Risk Assessment

The potential areas of risk for the company concern:-

(a) the procurement of goods and services for the operation of the company.

For this, internal procedures exist for the identification of the third parties involved and for the proper accounting of payments to such third parties as audited annually by the auditors of ERA.

(b)     the licensing or engagement of authorised third parties to enter into agreements with ERA, covering blanket licensing of identified groups of educational establishments to the extent permitted by licensing schemes operated by ERA and within Mandates granted to ERA by its Members.

The terms of licences issued list names of educational establishments to be covered by such licences in the form of Annexes to the licence documentation.

Procedures for invoicing and receipt of payments, in line with ERA’s approved internal accounting practice, specify the terms for agreed payments to be made and the discounts against published tariffs agreed within the perimeters approved by the ERA Board from time to time.

(c)     the appointment of authorised third parties authorised to make educational recordings on behalf of ERA Licensees under written contractual terms and conditions which prevent the retention or the use of any recordings or copies by that third party or any other third party unless ERA shall have expressly agreed that a specific third party may retain any recordings or copies for subsequent use only by educational establishments licensed by ERA in accordance with the provisions of relevant ERA licences.

The above procedure is confirmed by written agreements with identified third parties establishing appropriate contractual obligations to ERA for compliance by the third parties.

(d)     licensing of any company or third party which is not an “educational establishment” within the definition provided by the Copyright, Designs and Patents Act 1988 (as amended from time to time).

Standard due diligence tests are undertaken to ensure that a body seeking a licence verifies their corporate status and the educational nature of courses operated by it.  In addition, third parties are required to comply with the financial procedures operated for the issue of licences and confirmation of fees calculated against pupil or student numbers.

4. Director’s responsibilities

The Memorandum and Articles of Association of ERA set out the powers and duties of the Directors of ERA. They also set out the basis upon which a Director will vacate office [including if a Director becomes prohibited by law from being a Director or ceases to be a Director by reason of any provision of the Companies Act(s)]. In addition, provision is made for a Director to declare if they are in any way directly or indirectly interested in a contract or proposed contract with ERA (in accordance with sections 177 and 182 Companies Act 2006).

5. Hospitality

The Board recognise and agree that within the duties of senior members of staff it is appropriate for them to continue to provide bona fide hospitality, promotional and other expenditure in line with budget provisions approved by the Board.

Expected expenditure will be anticipated in the annual budget submitted to the Board for approval. Details of expenditure incurred will be recorded and kept within the company accounts.

The Board recognise that Directors and members of staff may receive bona fide and proportionate hospitality when the purpose is to establish cordial relations with licensees or between ERA members, or is to better present the services that ERA offers.

6. Communication with Licensees

The ERA Board has agreed that these procedures should be published on the ERA website (www.era.org.uk) and copies provided the third parties who request confirmation of the procedures in place to prevent infringement of the provisions of the Bribery Act 2010.

July 2011