Practical points on ensuring grievance mechanism legitimacy

Anna Triponel

October 8, 2021

This note captures comments delivered by Anna Triponel to the Grievance Redress and Accountability Mechanism (GRAM) Partnership, coordinated by the Independent Redress Mechanism (IRM) of the Green Climate Fund (GCF) and organised by the Office of the UN High Commissioner for Human Rights (OHCHR) on 8 October 2021.

Anna Triponel | 8 October 2021

Thank you for inviting me to be a part of your discussions today – with a particular thanks to the Office of the UN High Commissioner for Human Rights and the Independent Redress Mechanism of the Green Climate Fund. Creating channels for effective remedy is certainly not easy, and sharing lessons learned, insights and experiences openly is key to being able to advance meaningfully. I’d like to applaud all of you for being a part of this journey.

My name is Anna Triponel, and I’m a business and human rights advisor. Back in the day, I worked on the UN Guiding Principles on Business and Human Rights and since then, I have been working with a number of companies on developing policies and processes that can help them respect human rights in practice.

The way I see it, human rights due diligence can not be conducted without channels that enable people to access remedy where they have been harmed. And effective grievance mechanisms are a key pathway to enable effective remedy.

For how can a company understand how its business may adversely impact people, if these very people can’t tell the company about these impacts?

You’ll see on this diagram how I depict remedy and grievance mechanisms. It can be tempting to see grievance mechanisms as coming after human rights due diligence, because the order of the UNGPs is: policy – embedding of policy – human rights due diligence – remedy. However in my work with companies, we view remedy and grievance mechanisms as a step before human rights due diligence – as a step that enables quality human rights due diligence to be conducted.

However, this is not to say that creating channels for effective remedy is easy. Far from it. But it’s necessary. And we have a range of learnings from the private sector that can be helpful as organisations grapple with how to proceed.

Today, I’ll be focusing on the effectiveness criterion of legitimacy.

To anchor this into practice, I’ll be providing some insights from two recent grievance mechanisms: the first of its kind for self-employed workers and based on the UNGPs, for which I served as Ombudsperson from 2016 to 2019, and one of the first community-focused grievance mechanisms to be created following a legal settlement for a mining company, for which I serve as International Human Rights Expert since 2020.

First, a few words about these contexts.

In 2016, Hermes, one of the UK’s largest parcel delivery companies, was in the limelight. Media exposés had shone the spotlight on stressful working conditions and inadequate pay and protection, amongst other matters, leading to media and Parliamentary attention on working conditions for self-employed workers in the logistics sector.

Hermes responded by creating a new Code of Conduct committing to treating couriers with respect and dignity. The grievance mechanism for couriers served as a back-end to this, so that couriers had a place to go if they felt the Code was not being lived up to by the company and its managers.

The second case relates to Gemfields, a company perhaps best known for its Fabergé jewellery brand. Gemfields operates the Montepuez mine, the world’s largest ruby mine in Mozambique. In 2018, law firm Leigh Day brought a lawsuit against Gemfields and its majority owned local company MRM on behalf of a group of Mozambicans living near the mine.

As part of the no-admission-of-liability settlement, Gemfields and MRM created an operational-level grievance mechanism (OGM) for neighbouring communities that had not benefited from the settlement – as well for future claims – based on the effectiveness criteria of the UNGPs.

So, what is the legitimacy criterion, and how was it applied in these two contexts?

  • What the legitimacy criterion boils down to is being able to respond to this question: What would engender trust in the users of the mechanism?
  • It is the perception of the mechanism’s legitimacy that matters.
  • This trust in turn can only be built by engaging with those stakeholders for whose use the mechanism is intended.

In the case of Gemfields and MRM, the companies created a process of ‘co-design’. What this meant in practice was that the companies coordinated focus group discussions in the seven communities most directly impacted by the company’s operations.

The input received from these consultations in turn led to direct changes to the proposed OGM structure. For instance, the OGM was revised to:

  • provide more accessible access points,
  • increase the number of face-to-face meetings,
  • enhance participation of women as OGM staff and
  • provide more tailor-made assistance for vulnerable groups.

In other words, the companies didn’t just listen and say – “great chat, we’ll just get on with it now”. They listened to those the mechanism was intended for, and sought to integrate what they heard.

These consultations also led to a decision to create a ‘pilot testing phase’. This meant that community and individual feedback meetings were scheduled to take place in the first few months of the OGM’s operation so that feedback received could feed into adjustments to OGM design.

This process of co-design started in January 2019, with the piloting phase taking place from October of the next year, 2020, to February 2021. So, as you can see, the design stage lasted for over two years, but taking this time was viewed as particularly important to enhance the likelihood that community members would trust, and use, the OGM.

In the case of Hermes, the strong media and parliamentary scrutiny led the company to respond immediately. The exposé of poor working conditions hit the news in July 2016, and by September, the company had adopted its Code of Conduct and designed its OGM which was up and running by November. In practice, this rapid pace of development left little room for consultation with couriers as part of the OGM design.

However, once created, the company sought to counter this by creating an active outreach plan of engagement and consultation throughout the course of 2017. This included coordinating focus groups with self-employed workers, visiting work sites and using the opportunity of online forums already used by workers to discuss the mechanism.

Some takeaways from this:

  • Early engagement is preferable to feed into the OGM design.
  • Engagement is necessary throughout – but the early engagement helps set the tone for the remainder of the relationship between the OGM and its users.
  • At the same time, there may be practical reasons why this engagement does not take place.
  • Where this is the case, placing dedicated attention to engagement in the early days of the OGM is paramount. There is a window of opportunity at the beginning of the OGM’s life where trust can be built. If that window is lost, it is a challenge, if not impossible, for OGMs to restore trust.

Another important consideration to engender trust in the users of the grievance mechanism is to establish an independent process for complex issues.

For Gemfields and MRM, this meant creating a system of inter-locking pieces as you can see on this slide, with a Secretariat, a Tier 1 process for lower-level grievances, a Tier 2 process for grievances related to allegations of severe human rights impacts, and an independent Appeals Panel. Both the Independent Panel and Appeals Panels are staffed by individuals outside of the company selected for their expertise and/or their connection to civil society, or the academic/ research world. The process is facilitated by outside experts, such as myself as International Human Rights Expert. In practical terms, I advise the OGM on implementation of the UNGPs’ effectiveness criteria on a day to day basis. I don’t have a vote on remedy, but provide input and guidance to those who do.

For Hermes, a different system of inter-locking pieces was designed, with the same objective of helping enhance the independence of the process. As you can see on this slide, there was a Panel in the company staffed by professionals at arms length from operations. The Panel took decisions on day-to-day grievances. Where these grievances arose to the level of a severe human rights impact, I could take the decision as Ombudsperson, using the UNGPs as my basis, or I worked with the Panel to find appropriate remedy for the case. To help guarantee my independence, I could travel freely to any warehouse and depot, and I had a direct line to the Board’s Audit Committee. In practice, this led to some very helpful discussions with senior managers and the CEO, which fed into a new strategy for the company seeking to tackle the root cause of some of the grievances raised.

My personal observation on independence is that how the OGM is structured to help ensure independence is of course paramount. But this structure will only go so far if users don’t know about how the inter-locking pieces are designed so as to help enable independence. All of the pieces – reporting lines, funding lines, recruitment procedures, etc. – are important and merit being explained to users.

So, here once again, we come back to the importance of early and ongoing engagement and dialogue with users. Putting in the extra effort will help set the stage for the outcomes that will follow – and help users more readily understand and accept outcomes where they may not be aligned with their expectations.

As I conclude, let me be clear. I am not saying here that these mechanisms are perfect and have all the answers. I don’t think we can say that about any mechanism – at least, not yet! What I am saying is that the designers of both of these mechanisms thought deeply about legitimacy and sought to create a structure that could work for those the mechanism was intended to serve. Their experience can be illustrative, and I look forward to hearing yours as part of the discussion.

Thank you.

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