Christmas is gift time. But beware, in this traditional exchange of gifts, also typical in the business world, details that are out of the ordinary, such as trips, hotel nights or luxury watches, can cause problems for the employee. A warning in the slightest cases, and in the most serious, dismissal. Even the commission of a crime of business corruption.
In full fury for the compliance (the practice of guaranteeing that everything is legal within entities) businessmen look closely at any hospitality, donation or benefit smelling of bribery. “More and more companies have crime prevention plans,” confirms Ignacio Rodríguez de la Riva, partner at De La Riva & Pastor Abogados, who emphasizes the greater “sensitivity” of citizens and companies in the matter.
The opinion is shared with Maribel Vazquez Tavares, managing partner of commercial and civil at Selier Abogados, who notes that management is increasingly concerned with implementing gift control policies. With these codes, the bosses can prohibit the staff from accepting any external donations, keep a record of the gifts received or oblige them “to be handed over to certain NGOs.”
A box of chocolates is not the same as a trip to Cancun. To know what bonuses are acceptable, the first filter is common sense. It is necessary to analyze what is usual and normal in this type of commercial relationship, explains Rodríguez de la Riva. “Giving a Christmas ticket before a raffle” would pass the screen, says the lawyer. Or receive “corporate stationery from the company”, or “inexpensive wine bottles”.
What gifts are prohibited? In the first place, those included in the company policy. Second, those that are clearly inappropriate. For excessive or too luxurious. An example is a computer, a boat trip or a luxury watch.
Maribel Vazquez says that many companies mark a economic limit of 100 euros. If the invitation arrives sneakily, bypassing the control systems, the behavior must attract the employee’s attention. In no case are presents such as “money, shopping cards or luxury objects” acceptable, underlines the lawyer
The intention also counts, highlights the expert. That is, if there is a desire to get a “consideration”. A worker can give an entrepreneur a Caribbean cruise out of pure friendship; Or – easier to believe – you can pursue the award of a contract.
In scenarios like these, Ignacio Rodríguez warns that, beyond the possible dismissal, “if the decision to choose that supplier is the gifts that the employee receives, a crime of corruption between individuals of article 286 bis of the Penal Code could be committed, which provides for disqualification penalties, a fine and even imprisonment ”. For these occasions the law imposes corrections of up to four years in prison.
The administration is especially guarded. Offering money to favor the granting of a public contract “may constitute a crime of bribery, set forth in articles 419 and following of the Penal Code,” emphasizes Rodríguez de la Riva. Better think twice: jail terms escalate up to six years in the most serious cases.
In recent years, many public entities have implemented conflict of interest prevention plans and gift control policies. One of the most recent has been the plan approved by the Ministry of Defense. The document prohibits its officials from “obtaining personal or material advantages” and obliges them to “refrain from matters in which they have a personal interest and may affect their objectivity.” They cannot accept acknowledgments that exceed small “courtesies of little value”. Beyond this limit, the official who accepts a gift does so knowing that it borders the border of legality.
Travels. Trips to Punta Cana with a companion, dinners in luxury restaurants, cars or shoes for more than 16,000 euros. Two bank employees were fired for receiving gifts of this caliber from a very close customer. The Superior Court of Justice of Andalusia classified the dismissal as appropriate in 2019. The magistrates approved the version of the bank’s auditors, who uncovered a network for the exchange of favors in order to validate high-risk operations.
Inheritance. The same year, on the other hand, the Andalusian justice rejected the dismissal of a bank employee whose husband accepted the inheritance of one of his clients. Although the conduct was contrary to the entity’s code of ethics, for the magistrates there was no concealment of the fact that justified the dismissal.
Tip. A judge in Valladolid confirmed the dismissal of the manager of a supermarket chain for asking for a “tip” of 7,000 euros as a bonus for the sale of a store. Although the money was not received, the mere proposal is enough to break business confidence.
Whiting. Giving a whiting to a customer before throwing it away at a supermarket chain is no reason to fire. The Social Chamber of the Supreme Court highlighted this in 2015.
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