Access to remedy: getting it right for workers while reducing legal liability

Philippines rice harvest courtesy of ILO

The right to remedy is basic principle in international human rights law. Yet extensive research has shown that where business enterprises are involved in rights abuses, victims continue to struggle to access remedy. Under the UN Guiding Principles on Business and Human Rights (UNGPs), business have a direct role in addressing this, writes Ben Rutledge.

Download our new Guidance on Access to Remedy: Practical Guidance for Companies.

Workers in international supply chain may face numerous problems or rights infringements.

Many infringements will be day-to-day issues that can be handled through effective human resource systems. Others however will be more serious and may encompass modern slavery, sexual and verbal assaults, workplace accidents, or gender or ethnicity-based discrimination.

ETI recognises that modern supply chains are complex, and that production often occurs in emerging market economies where labour rights policies may not be sufficiently evolved or enforced.

Yet under the UNGPs, both states and businesses have roles to play in ensuring that victims of business-related rights abuses have access to effective remedy.

However, in reality, victims often face both practical and legal challenges to securing some form of redress when something serious has gone wrong. Rights without recourse are pretty much meaningless. Workers who have suffered harm need remedy that is fair and fast. So how do we achieve this?

ETI has therefore developed practical guidance for companies on establishing and participating in effective UNGP-informed remedy mechanisms for workers.

Clear advantages in enhancing access

Firstly, ETI believes there are clear advantages to enhancing access to remedy in supply chains.

Establishing clear, effective and transparent systems to provide remedy will help to ensure that companies meet their responsibility to protect workers’ rights. There are also distinct benefits to early identification of human rights risks, early resolution of disputes and building trust and understanding with suppliers.

Rather than increasing the risk of legal liability for what goes on in their supply chains, businesses should recognise that by not addressing issues sufficiently, they may actually be liable for not taking the available steps to protect workers’ rights in the first place.

Blurring of lines

The relationship between legal liability and accountability for harm caused is becoming increasingly blurred.

Businesses can no longer simply push risk down the supply chain and outsource responsibilities related to remedy. Codes of conduct and contracts cannot control legal liability.

ETI recommends therefore that companies take responsibility for providing access to remedy in supply chains. This begins with securing senior level buy in within the company, providing remedy where harm has already occurred, and establishing a sound remediation policy and strategy.

When you uncover instances of having unintentionally caused or contributed to an infringement of workers’ rights, we recommend taking action to ensure that timely and effective remedy is provided to all those affected. This is likely to require an investigation into the issues, identifying what the affected worker/s needs and wants, and responding pro-actively with the relevant partners.

Our guidance provides examples of where and how companies have done this, acting alone and with competitors sourcing from the same supplier.

Develop a remedy strategy

Businesses should seek to develop an effective remedy strategy to help prevent incidences that would require remedy, address issues rapidly and constructively, and ensure that the right stakeholders are involved.

This requires businesses to:

Conduct due diligence to identify human rights risks in the supply chain, and to assess strengths and weaknesses of state and other mechanisms that workers can access.
Design support or develop operational grievance mechanisms. You may be sourcing from dozens if not hundreds of locations around the globe. ETI recommends that you prioritise high-risk countries, where state systems appear to be particularly weak. We provide criteria for assessing state and non-state remedial mechanisms.
Engage in evaluation and continuous improvement by evaluating processes, impacts and outcomes with workers. And implementing improvements where needed. If you can't measure it, you can't manage or improve it. We provide suggested KPIs and criteria for assessing grievance procedures against the UNGP effectiveness criteria.

Ability to raise concerns

A key starting point in developing grievance procedures is ensuring that workers can actually raise concerns in the first place.

The most robust and sustainable model for any workplace grievance mechanism is a mature system of industrial relations with a code of conduct that reflects all fundamental ILO conventions. A trade union recognition agreement and management system should also form part of an operational grievance mechanism capable of addressing individual grievances, disciplinary issues and collective disputes.

Remedy by dialogue will usually be the best way to resolve most issues. But this is not always possible and so an escalation procedure is required.

Certain systems and grievance procedures may have a role in human rights due diligence processes, and yet not actually facilitate the provision of remedy. And ‘worker voice’ without agency is flawed. Understanding the difference between worker voice, worker management communication, early warning systems and grievance mechanisms is therefore critical.

Occupational grievance mechanisms (OGMs)

A large enterprise, or one with significant human rights risks, may choose to set up its own grievance mechanism. However, most businesses should consider participating in and supporting a grievance mechanism provided by an external, independent organisation. OGMs can be implemented by trade unions, multi-stakeholder initiatives or NGOs, in partnership with local communities, for example.

If a business designs or works to develop a specific grievance process, there are several important factors to consider such as gender. Grievance mechanisms designed to address gender equality issues are central to ensuring that women workers can raise concerns safely and confidentially.

Unpacking challenges

ETI’s new guidance attempts to unpack some of the most challenging and complicated issues. It sets out a clear pathway for companies to progress:

Take responsibility for what occurs in your supply chain.
Conduct the necessary due diligence to understand labour rights risks and weaknesses in state and other remedial mechanisms. And
Act to ensure respect for workers’ rights.

By doing this, businesses will reduce legal liability, do right by the workers and communities impacted by business operations and build more resilient, sustainable supply chains.