Are companies equipped to provide fair remedy on human rights violations?
Probably no company in Europe would dare challenging in public the importance of having a Grievance Mechanism in place as an avenue to allow stakeholders raise their concerns and seek for remedy. However, when it comes to the actual implementation and understanding of the UNGP Pillar III on access to Remedy, companies remain puzzled, with a lot of questions about the way to make it happen.
Although for many years, many companies have managed complaint mechanisms, hotlines and other avenues set at the disposal of stakeholders, the operational grievance mechanisms for human rights keep giving companies some headaches.
Why is it so that operational-level grievance mechanism as recommended in the UN Guiding Principles still remains a sort of black box with a lot of question marks?
Under Pillar III on Access to Remedy, the UN Guiding Principles on Business and Human Rights expects:
States to take the necessary measures (judicial and non-judicial to ensure remedy)
Business enterprises to “establish or participate in effective operational-level grievance mechanism for individuals and communities who may be adversely impacted”.
From a UNGP perspective, access to remedy complements the human rights due diligence process because an operational-level grievance mechanism allows stakeholders to:
provide feedback about potential and actual adverse human rights impacts possibly caused by the enterprise (actions or omissions)
claim a remedy if the adverse effect has already been caused
The concept looks clear in theory, but companies still face practical obstacles that cannot be neglected. Many CSR practitioners in charge of setting up operational-level grievance mechanism in their companies realize that they don’t have:
the competence to judge the legitimacy of the raised concern
the infrastructure to investigate if there is a causal link between my activities and the concern raised by a stakeholder.
the competence nor the infrastructure to set up a ‘fair remedy’
These obstacles are real and honest. They need to be taken into consideration and within a wider context that evaluates the best ways to protect people from human rights abuses as well as the best ways to ensure remediation, should these rights be abused.
The UNGP pillar III suggests three different levels of access to remedy:
Judicial measures set and managed by the States
Non-judicial measures set and managed by the States
Operational level measures set and managed by business enterprises alone or by participation in operational level measures set by someone else different to the States.
Nevertheless, policymakers and NGOs seem mostly interested in the last one. Despite of this unbalance expectation, one should wonder, particularly when working in the CSR arena, if there may be a hierarchical order between the different levels of access to remedy and how respecting that hierarchy could facilitate the implementation of operational grievance mechanism.
Many voices suggest that operational level grievance mechanisms set and managed by business enterprises exist because certain States have failed to provide the necessary judicial and non-judicial access to remedy, to individuals and communities.
From that perspective, operational-level grievance mechanism would appear as the most obvious avenue to raise concerns about a particular business’ action or omission that may be causing adverse impact to individuals and communities.
However, from a human rights perspective, addressing a company to seek remedy prior to exhausting the State’s judicial and non-judicial measures does not come without risk, because the reality is that most companies will not be equipped to provide fair remedy on human rights violations. Furthermore, one could even wonder if it is appropriated that a potential perpetrator of human rights violations could negotiate the remedy with the victims without an impartial third party getting involved, as everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal (art 10 UHRD).
Please notice that we talk about fair remedy to human rights violations, we are not restricting the field of action to corrective actions concerning some labor rights (e.g., emergency exits, premium paid overtime, excessive working hours…), for which companies can certainly find ways to remedy them.
We are talking about actual or potential threats to the right to life (art 3 UHRD); freedom of expression (art 19 UHRD); freedom of thought, conscience and religion (art 18 UHRD); right to marry and found a family (art 16 UHRD) to name some of the most essential and complex human rights.
While the philosophical discussion remains open, CSR practitioners are advice to go for a stepwise approach that helps them to mitigate the internal deficiencies that companies can phase in setting and running effective operational grievance mechanisms:
Assess which avenues your company has already in place and try to build from that infrastructure, internal know-how and lessons learned
Identify the possible allies you may have along the different supply chains: since you will not do this alone, it is worth identifying different people (internal and at your business partners) who may have the competence and interest to run a grievance mechanism that mitigates risk and provide fair remedy
Identify what are the judicial channels in the major regions where you work and how they actual judicial procedure to seek for remedy works. This is important because the operational grievance mechanism can’t never be considered in isolation but as part of a wider net. Even if companies are well equipped to provide fair remedy to potential victims a precautionary approach needs to always be kept in mind to not undermine State’s jurisdiction.