A Deeper Look at Human Rights and Business: The Five Stages of Access to Remedy

Authors

• Chloё Poynton

  Former Manager, BSR

Last week at the UN Forum on Business and Human Rights, business, civil society and government gathered to assess the progress companies have made in implementing the UN Guiding Principles on Business and Human Rights. The event underscored the fact that companies have made significant strides in assessing and mitigating potential issues, which means rights-holders are more well-protected from potential corporate human rights infringements today than they were when the Guiding Principles were launched in 2011. This is an impressive achievement that should be applauded today on International Human Rights Day. 

Yet there is a need to further define the responsibility for companies to provide access to remedy in cases of human rights infringement. A remedy—or compensation given to the individual or community whose human rights have been infringed—is intended to “right the wrong” caused by corporate-led infringements. While this is not always possible, companies have a responsibility to attempt to remedy the infringement.

Examples of corporations providing remedies exist across all industries. In the consumer products industry, Primark, which, alongside many other brands, sourced from a supplier housed in Rana Plaza—the Bangladesh factory building that collapsed, killing almost 1,130 workers last April—has developed a program to provide compensation for its supplier’s workforce or their dependents. In the extractives industry, Barrick Gold has committed to providing remedies for victims of sexual assault at the hands of Papuan security guards at their subsidiary, the Porgera Joint Venture. And finally, in the technology industry, Yahoo! provided compensation to the family of Chinese dissident Shi Tao, for whom the company complied with the legal requirements set by Chinese authorities and was compelled to release user information, which resulted in Shi’s imprisonment by the Chinese government. Yahoo! also created a separate human rights fund to provide humanitarian and legal support to political dissidents who have been imprisoned for expressing their views online, as well as their families.

Over the past year, I have advised company leaders on developing effective remedies in cases of human rights infringements. In doing so, I have found that while a “typical” remedy process does not exist, proactive engagement with rights-holders through a predictable and transparent proceeding is likely to be considered by stakeholders as more credible, and it is more likely to result in appropriate remedies for victims of infringements.

What follows is specific guidance on how to develop this process at each stage of a remedy program.

1. Notification of a possible infringement: Even with all the human rights precautions taken by companies, infringements may occur. Companies should conduct continuous and proactive engagement with rights-holders to find grievances.

This typically involves the development of a robust, operations-level grievance mechanism. The mechanism—which can be anything from a company-led hotline to a multistakeholder inter- or intra-industry mechanism—should be developed in consultation with rights-holders to ensure that it is accessible, culturally relevant, trusted, and responsive to the needs of rights-holders.

2. Investigation of the claim: Investigating claims of potential human rights infringements is often the most contentious stage of the process. Companies should investigate the claims with speed and fairness, either in consultation with claimants or through a mutually agreed-upon neutral third party.

3. Development of a remedy: Effective remedies should respond to the unique context of the infringement and should be informed by the views and needs of the rights-holders. The development of the remedy should be:

• Determined in consultation with claimants to ensure the impact of the infringement is understood and the type and level of compensation proposed is appropriate.
• Facilitated by a neutral third party to help ensure equal balance between the parties, broach controversial topics fairly, and establish a respectful tone for the process.
• Rights-compatible to ensure that claimants are treated with respect, provided with independent legal counsel of their choosing, and informed of their rights and responsibilities.

4. Implementation of the Remedy: The primary question for implementation should be: How can the remedy be implemented to minimize additional harm? To get this right, companies should consider the following principles:

• Accessibility: The remedy is useful only when claimants are able to access it in a manner that ensures their safety and minimizes additional burdens.
• Anonymity: In some cases, the claimant may choose to remain anonymous, so the delivery of the remedy should not hinge on revealing the individual’s identity.
• Transparency: While anonymity may be important, it should not result in a closed process for implementation. To do this, continuous engagement with relevant stakeholders and claimants is required.

5. Prevention of future issues: The Guiding Principles require remedy programs to be a “source of continuous learning.” As such, the remedy program should include a joint assessment that examines the impact of the remedy and incorporates lessons from the process into the grievance mechanism and the development of future remedy processes.

Additionally, a primary requirement of a remedy is the promise of non-repetition. Once the company has determined it has caused or contributed to a negative human rights impact, work should commence immediately to prevent future infringements. When the remedy program comes to a close, the company should have—and communicate to rights-holders—a clear strategy to ensure non-repetition.

Corporate-level remedies are the means by which a business can attempt to right a wrong that occurred due to business activities. The remedy process also benefits the company by building trust with rights-holders, minimizing the risk of future harms, and resulting in reputational benefits. Most importantly, the process ensures that companies meet their responsibilities under the Guiding Principles to honor the dignity and rights of claimants.