‘DEAR PHC, can you please clarify if the anti-bribery act also covers cab drivers and controllers? There are many drivers who pay money to get good jobs, while others buy controllers cigarettes, pizzas and kebabs’ – Stephen / London private hire driver
THE EMAIL ABOVE was sent to PHC and highlights the problem faced by cab drivers who believe their controllers are distributing bookings in an unfair manner.
Data despatch software can remove the element of favouritism between controllers and drivers but many medium and smaller companies still rely on a human being sitting in front of a computer handing out work to drivers and vehicles best suited to a particular client.
So, are controllers being bribed or is there an element of paranoia also involved?
It is undeniably difficult, as a cab driver or courier, to sit alone in a vehicle and listen to all the plum jobs going to colleagues. But are drivers really missing out on the top work? Or are they just forgetting their own premium jobs, which in turn, made their own co-workers jealous?
Alleged bribery, between cab company sales teams and client mailrooms has declined, compared to a couple of decades ago, but does the ‘greasing of palms’ between controllers and favoured drivers fall within the definition and remit of the Bribery Act 2010?
WHAT IS COVERED BY THE 2010 BRIBERY ACT?
According to the government’s UK Trade & Investment website, “Bribery is defined as giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so.
“This could cover seeking to influence a decision-maker, by giving some kind of extra benefit to that decision maker rather than by what can legitimately be offered as part of a normal working process.
Controllers and bosses deciding who gets which job and when could therefore appear to fall within the remit of the 2010 Bribery Act.
WHEN COULD MY ORGANISATION BE LIABLE FOR PROSECUTION UNDER THE BRIBERY ACT?
You could be liable if a senior person in your company commits an act of bribery. This person’s activities would then be attributed to the organisation.
Your organisation could also be liable where someone who performs services for it, pays or receives a bribe specifically to get business, keep business or gain a business advantage with or for your organisation.
Controllers are categorised as senior workers in many cab companies and the receipt of money and / or gifts, in exchange for favourable treatment, could bring their activities within the 2010 Bribery Act.
WHAT DEFENCE DO I HAVE AGAINST A CHARGE OF BRIBERY?
The action you take should be proportionate to the risks you face and to the size of the business. You might need to do more to prevent bribery if your organisation is large, or if you are operating in an overseas market where bribery is known to be commonplace.
(2) Top Level Commitment
Those at the top of an organisation are in the best position to ensure their organisation conducts business without bribery. If you are running a business, you will need to show that you have been active in making sure that your staff and the key people who do business with you and for you understand you do not tolerate bribery.
(3) Risk Assessment
Think about the bribery risks you might face. For example, you might want to do some research into the markets you operate in and the people you deal with.
(4) Due Diligence
Knowing exactly who you are dealing with can help to protect your organisation from taking on people who might be less than trustworthy. You may want to ask a few questions and do a few checks before engaging others to represent you in business dealings.
Communicating your policies and procedures to staff and to others who will perform services for you, enhances awareness and helps to deter bribery by making clear the basis on which your organisation does business.
DO I NEED COMPLEX PROCEDURES IN PLACE IF THERE IS NO RISK?
No. If there is very little risk of bribery being committed on behalf of your organisation then there may be no need for any procedures to prevent bribery.
DO I NEED TO CONDUCT DUE DILIGENCE ON ALL MY SUPPLIERS?
You only have to think about carrying out due diligence on persons who actually perform services for you, or on your behalf. Someone who simply supplies goods to you is unlikely to do that.
However, most private hire drivers are self-employed workers providing goods to a company and so will fall within this category. Due diligence, in this instance would require operators asking for AND checking prospective drivers’ CRB checks, licence and vehicle documentation.
DO I NEED TO EMPLOY CONSULTANTS OR LAWYERS TO PROVIDE ADVICE ON THE RISKS I FACE?
No. There is no duty to engage lawyers or consultants in helping to assess what risks you face, what procedures you might adopt or what sort of due diligence you need to undertake. Especially, where you consider the risks to be low or non-existent.
CAN I PROVIDE HOSPITALITY, PROMOTIONAL OR OTHER BUSINESS EXPENDITURE UNDER THE ACT?
Yes. The government does not intend that genuine hospitality or similar business expenditure that is reasonable and proportionate be caught by the Act. So you can continue to provide bona fide hospitality, promotional or other business expenditure.
WHAT ARE FACILITATION PAYMENTS?
Facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform are bribes. Drivers giving money and or free food to controllers to secure more lucrative job bookings come under the banner of facilitation payments and must therefore be seen as a bribe.
HOW SERIOUS IS ALL OF THIS?
It might seem ridiculous and over-the-top to compare private hire drivers trying to get controllers to give them a wait-and-return to Heathrow, with multi-national companies bribing foreign ministers to win lucrative militarily defence contracts.
But in essence, the crime is the same. The offer of cash and or gifts to secure financial gain.
Will a private hire controller or boss go to prison if he or she is caught taking backhanders from their favourite drivers? Who knows.
As far as PHC is aware, no prosecution of this sort has yet to reach the courts. But all it takes is one disgruntled driver to go to the police and get the ball rolling. So PHV companies and their staff should probably review their policies, with regards to the Bribery Act.
The penalties, as set out opposite, are quite stiff for those found guilty of offering or accepting bribes and PHC would hate to be the one that said ‘we told you so’ when a controller or company boss is sent to prison or fined thousands of pounds. PHC asked TPH if it had a view on the 2010 Bribery Act, with regards to drivers giving their controller gifts in order to get more lucrative bookings and a spokesman said the authority had no comment.
TFL TAKE ON HOTEL TOUT BACKHANDERS
Transport for London (TfL) sent out a letter to hotels last year, warning management about the problem of concierge service staff taking money from licenced and unlicensed taxi and private hire drivers who pass on unbooked customer work.
The letter, signed by Helen Chapman, general manager at TfL’s London Taxi and Private Hire department, read: “We have recently received complaints of practices at some major London hotels that are bringing the taxi and private hire trades and the hotels themselves into disrepute.
“The complaints relate specifically to lucrative journeys from hotels to London’s airports. The practice of some taxi drivers is to wait near the hotel (not on the rank if there is one) and have an arrangement whereby, if someone asks for a taxi to the airport, the doorman or concierge will telephone the taxi driver and in return, the driver will pay the doorman a cash fee.
“Any taxi driver who starts the meter before the hiring commences or takes a devious route in order to inflate the fare is committing an offence which could result in prosecution or the loss of their licence” – Helen Chapman
“In order to recoup this ‘cost’ the driver allegedly puts the meter on long before the passenger gets in and then takes a longer than necessary route to get to the airport.
“Any taxi driver who starts the meter before hiring commences or takes a devious route in order to inflate the fare is committing an offence which could result in prosecution of the loss of their licence.”
Ms Chapman added, that some of the hotel doormen were also booking illegal PHV jobs directly with a driver and not using a licensed operator. Your staff could also be accused of acting as an illegal operator and leave themselves open to prosecution.”
CAB CORRUPTION IN THE SEVENTIES
A pair of American tourists were forced to buy breakfast for a London taxi driver after he refused to take them to Heathrow Airport on an empty stomach. Mr Eric Weile, a former legislator from Maryland was exasperated and said: “The taxi man gave me a long spiel about how bad the weather was and how dangerous it was for him to drive. He said we had to pay a 50p ‘fog charge’ and that he couldn’t move until I bought him a breakfast of bacon, eggs and coffee.”
London newspaper headlines screamed, “Payola racket hits West End clubs” as black cab drivers were accused of their old, “no commission, no punter” tricks. One club owner Tony Engleman closed down his venue in New Bond Street because he stopped paying commission to taxi drivers and suddenly found he had no customers. West End Central police superintendent Sydney Nicholson said, “Drivers have closed down at least two strip joints which refused to give money to taxi drivers. Make no mistake, these cabbies are powerful.”
The capital’s minicab trade was also accused of ripping off guests staying at hotels in the capital. A newspaper investigation at the Grand Hotel in Southampton Row, Bloomsbury, found that porters were charging guests £10 for a £6 job to Heathrow Airport and giving drivers from London Wide Radio Cabs £7 and keeping the remaining £3 to themselves. One porter, at the hotel, said it was cheaper for tourists to be ripped off by minicabs than taxis, who charge £20 to go to Heathrow. “Everyone is doing it and the fact is that black cabs are notorious for ripping people off.”
BRIBERY ACT PENALTIES
(1) An individual guilty of an offence under section 1, 2 or 6 (Offences of bribing another person / Offences relating to being bribed / Function or activity to which bribe relates / Improper performance to which bribe relates / Bribery of foreign public officials) is liable:
(a) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years, or to a fine, or to both
(2) Any other person guilty of an offence under section 1, 2 or 6 (Offences of bribing another person / Offences relating to being bribed / Function or activity to which bribe relates / Improper performance to which bribe relates / Bribery of foreign public officials) is liable;
(a) on summary conviction, to a fine not exceeding the statutory maximum
(b) on conviction on indictment, to a fine
(3) A person guilty of an offence under section 7
(Failure of commercial organisations to prevent bribery) is liable on conviction on indictment to a fine
The penalties for committing a crime under the Act are a maximum of 10 years’ imprisonment, along with an
unlimited fine, and the potential for the confiscation of property under the Proceeds of Crime Act 2002, as well
as the disqualification of directors under the Company Directors Disqualification Act 1986