The missing piece: what is remedy and how can businesses implement adequate measures to improve their approach to remediation.
Human rights are basic, fundamental, and universal rights inherent to all individuals, regardless of their circumstances and personal characteristics. Modern human rights have been recognised since the 17th century. Nonetheless, still today serious human rights violations persist in all parts of the world, and these are often linked to corporate activity.
Under international human rights law, where human rights are negatively impacted, there must be effective remedy. Access to remedy is a core component of the United Nations Guiding Principles on Business and Human Rights (UNGPs) and the OECD Guidelines for Multinational Enterprises, which are increasingly becoming law in a growing suite of international legislations which are promoting alignment with one or both standards e.g., the European Corporate Sustainability Due Diligence Directive (CS3D). As such, the focus on remedy or remediation, which are often used interchangeably, is likely to increase in the coming years.
Many stakeholders have expressed concerns about businesses’ failure to fulfil their obligations regarding access to remedy. In April 2024, the Office of the United Nations High Commissioner for Human Rights (OHCHR) released new guidance on access to remedy and in this blog we explore several of the topics covered, along with pertinent issues related to operational-level grievance mechanisms. Explore the actionable steps your organisation can take to implement effective grievance and remediation procedures.
The UNGP Framework: Caused, contributed, and directly linked.
The UNGPs offers a framework to explain how a business can be connected to adverse human rights impacts and when they should participate in remedy. Albeit not binding, the framework is a useful tool for understanding an entity’s relationship to an adverse human rights impact, and its consequent liability (obligation) to remedy.
Central to the UNGP’s remedy framework is the concept of ‘caused, contributed, and directly linked’. The framework recognises that businesses can impact human rights in various ways, and as a result, prevention or mitigation strategies should be tailored to the event.
“Caused” – In the event where a business’ activities or omission (i.e., lack of due diligence) has materially increased the risk of an adverse impact the business will be considered to have caused the harm.
“Contributed” – Contribution commonly occurs in one of two ways:
(1) via a third party or
(2) when acting in conjunction with another entity.
“Directly linked” – A business is directly linked to an adverse impact where there is a relationship between the adverse impact and the business’s products, services, or operations through another entity.
Where business enterprises identify that they have ‘caused’ or ‘contributed’ to adverse impacts, they need to provide for, or cooperate in remediation, through legitimate processes if they are to meet their responsibilities under international human rights standards. Linked involvement does not bring up a liability to remediate. However, companies are expected to use their influence to mitigate the risk to the greatest extend possible.
The importance of understanding leverage in risk mitigation and remediation.
Among the factors that can help determine the causal link between a company’s actions / omissions and harm, and the appropriate remedial action to be taken, is the concept of leverage. Leverage entails a company’s level of influence or power over a relationship, and therefore provides an indicator of whether a company may be able to affect change on their on their business relationships, for example to encourage them to improve conditions and remedy incidents. Where a company has limited leverage, it should take the necessary steps to build leverage over suppliers or customers who can most effectively mitigate the identified risk. For example, leverage over customers is likely to be strongest before a sale, where companies can negotiate to put risk mitigation strategies in contracts.
Types of remedy and effectiveness criteria
According to the UNGPs, the types of remedy for victims of human rights abuses include:
- State-based judicial mechanisms such as civil action and criminal prosecutions.
- State-based non-judicial grievance mechanisms such as those run by regulatory bodies, national human rights institutions, and the OECD national contact points for responsible business conduct.
- Non-state-based grievance mechanisms, which includes operational-level grievance mechanisms.
Operational-level grievance mechanisms are mechanisms though which affected stakeholders can raise concerns about potential or actual human rights impacts related to a company and seek a remedy. Under a business’s responsibility to respect human rights, companies are expected to establish or participate in effective operational-level grievance mechanisms. They may include the human resources department, community liaison office, a safety management system, and a complaints system. Whistle-blower mechanisms may not count as operational-level grievance mechanism under the UNGP criteria, as whistle-blowing mechanisms are typically designed to enable people to raise concerns about breaches of law, company policies, or codes of conduct – rather than adverse human rights impacts. However, depending on how the mechanism has been designed, it may be a form of operational-level grievance mechanism and they can serve as a useful starting point for companies.
For operational-level grievance mechanisms to be considered effective under the UNGPs, they should be legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning, and based on engagement and dialogue. The effectiveness criteria are presented not as a gold standard but ‘as a floor’ and as such, companies should strive to meet them all. More on the effectiveness criteria can be found in guidance written by the OHCHR Accountability and Remedy Project.
Practical steps companies can take to improve their approach to remedy:
1. Make operational-level grievance mechanisms known and available to all affected stakeholders.
Companies should ensure that remediation mechanisms, including operational-level grievance mechanisms can be accessed by all affected stakeholders and not just employees and suppliers. Operational-level grievance mechanisms should be available to all stakeholders who may be adversely impacted by a companies’ business operations. In addition, companies should take a multi-layered approach to grievance mechanisms to make them more accessible to different users by offering multiple channels to raise concerns. Finally, operational-level grievance mechanisms must be known to be useful. Although companies with zero or a low number of grievances might interpret this as a limited number of human rights violations occurring, it might signal a lack of awareness by affected stakeholders.
2. Incorporate the view of affected stakeholders in the remediation approach, including when reviewing and designing operational-level grievance mechanisms.
Meaningful stakeholder engagement is essential to identify the most appropriate remedy and to effectively respond to the needs of affected individuals – yet the prevailing approach remains top-down. Stakeholder consultation with employees, supply chain workers, local communities, end users and especially with representatives (such as trade unions), is an essential element in the remedy process. Companies should collaborate with individuals who understands the communities’ unique circumstances to ensure effective, culturally appropriate, and gender sensitive remedy is being provided. The OHCHR Interpretive Guidance highlights that “the quality of stakeholder engagement during the design of a grievance mechanism is the single most important determinant of whether stakeholders will be prepared to trust and use the mechanism”.
3. Collect feedback and assess the level of trust in operational-level grievance mechanisms.
When designing operational-level grievance mechanisms, companies must implement feedback loops to ensure the remedy provided to victims is appropriate. Companies should have policies and processes in place to ensure that lessons learnt from feedback have been incorporated into the mechanism going forward. In addition, companies should build processes to evaluate the level of trust affected stakeholders have in operational-level grievance mechanisms. This can be achieved by reviewing the types of human rights incidents raised through the grievance mechanism and the profile of the affected stakeholder.
4. Use data from your operational-level grievance mechanism to inform your company’s approach to human rights due diligence (HRDD).
Effective operational-level grievance mechanisms can help businesses to identify their adverse human rights impacts, identify ways to address these risks effectively, and provide a platform for ongoing stakeholder engagement. Furthermore, the data from operational-level grievance mechanisms can also be extremely useful for tracking the effectiveness of a HRDD process over time and the data collected can be used to enhance the quality of HRDD.
If you want to know more about good practices to follow when designing, reviewing, and implementing grievance and remediation mechanisms, please get in touch with us:
- Amelie de Borchgrave, Director (KPMG Business Integrity & Human Rights),
- Charlotte Adkins, Manager (Forensic, ESG)
