Access to remedy in cases of business-related human rights abuse

Our key takeaway: What does remedy have to do with companies’ responsibility to respect human rights? It is integral says the OHCHR. If companies cause or contribute to adverse human rights impacts, they need to provide for, or cooperate in, access to remedy for the people affected if they are to meet this responsibility under international guidelines and standards (i.e., the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises), which are increasingly becoming law across the world (e.g. the EU Corporate Sustainability Due Diligence Directive). Companies cannot merely implement grievance mechanisms, such as operational grievance mechanisms (OGMs), and hope that this meets their responsibility to provide access to remedy. Grievance mechanisms must be effective, both procedurally and substantively. And what does this mean in practice for companies? The OHCHR delves into the eight effectiveness criteria outlined under Principle 31 of the UN Guiding Principles (legitimate, accessible, predictable, equitable, transparent, rights-compatible, source of continuous learning, and based on engagement and dialogue), and practical steps that companies can take to implement them.

The Office of the United Nations High Commissioner for Human Rights (OHCHR) published its interpretive guide on Access to remedy in cases of business-related human rights abuse. This guide focuses on the access to remedy pillar (Pillar III) of the UN Guiding Principles (April 2024). (We focus here on the part of the guide that is relevant for operational-level grievance mechanisms (OGMs)):

• Providing for, or cooperating in, remedy is integral to businesses’ responsibility to respect human rights: Under the UN Guiding Principles, businesses can only meet their responsibility to respect human rights if they provide for, or cooperate in, access to remedy where they have caused or contributed to adverse human rights impacts. Operational-level grievance mechanisms (OGM) are channels that companies can implement to ensure remedies are provided quickly and directly to affected stakeholders. In addition: “[s]uch mechanisms can also help lay the foundations for creative, context-specific solutions that can help build trust between business enterprises and affected stakeholders, fostering more constructive and durable relationships.” Examples of OGMs include worker-driven mechanisms, community liaison offices, human resources departments, worker complaints hotlines, and responsible sourcing compliance mechanisms. Whistle-blower systems are different to OGMs. While OGMs are channels for people (directly affected and their representatives) inside and outside businesses to raise concerns about companies’ human rights impacts, whistle-blower systems enable people to raise concerns about breaches of the law and company policies. If the company is connected to many affected stakeholders, it should seek to prioritise efforts based on “those who may be at most risk of severe or irremediable harm.”
  

• The effectiveness of OGMs is critical: Companies must ensure effective access to remedy, which is both procedural and substantive in nature. The target audience must be able to readily access the grievance mechanism to raise concerns and the remedy provided, and the remedy outcome should be meaningful to the people affected. For instance, “measures should be put in place to ensure that individuals within those groups who may be at risk of vulnerability or marginalization, such as women, Indigenous Peoples or migrant workers, are not disadvantaged or excluded because of, for example, procedural requirements or modes of communication that do not take account of their circumstances or needs.” For remedies to be effective, they must meet the effectiveness criteria outlined in Guiding Principle 31. In practice, companies are expected to apply the effectiveness criteria in a holistic way and companies should strive to meet them all, rather than cherry-picking ones that are easiest to achieve. The eighth criterion - for mechanisms to be based on engagement and dialogue - applies specifically to OGMs. It is important because it ensures that the OGM in question meets the needs of affected stakeholder groups and they feel that they can use it in practice.
  

• Effective grievance mechanisms in practice: The guide goes through each of the eight effectiveness criteria in detail, including what they mean and examples of ways in which companies can meet them in practice. See Questions 62 to 69 for further insights from the OHCHR on what the effectiveness criteria entail in practice. The guide also delves into how non-State-based grievance mechanisms can contribute to a well-functioning “remedy ecosystem”, emphasizing that “[u]nder the “remedy ecosystem” approach, the focus is not on what individual remediation mechanisms can or cannot do to provide remedy, but on what their contribution can be to broader remedial efforts.”