Anna Triponel | 2 March 2020
Those of you interested in psychology will have heard of the torch metaphor to illustrate the difference between the conscious and the unconscious. A torch shining into a dark room lights up some objects – we become conscious that these objects are there. All other objects not lit up by the torch remain in the dark: we don’t even know that they are there, since we can’t see them (our unconscious, in this metaphor).
I use a similar image when discussing grievance mechanisms with companies. A company typically has limited visibility into the working conditions of those working for and with the business. Perhaps it has some awareness of how its employees feel about their work through worker surveys, human resources’ efforts and worker committees. Perhaps it has some awareness of how its supply chain workers feel about their work through audits, assessments or supplier surveys. But I have yet to meet a company that can say that it has clear visibility into the working conditions of those connected to its business at any one point in time, be they employees, contractors or supply chain workers.
There are ways of switching on the torch, for instance by developing channels for worker voice, respecting the right to form and join trade unions and to collective bargaining and implementing grievance mechanisms. By engaging with those we are trying to hear from in the process, the company may even be able to turn the ceiling spotlights on: a significant amount of valuable information about working practices can be exposed.
Although this can feel very uncomfortable for companies at the outset, I have seen first-hand the value of channels for worker voice and grievances in contributing to a working environment in which conflict and mistrust give way to constructive dialogue. We don’t need studies to prove this (although there are many we could point to): we all know from our own professional life that when we feel listened to, we are more fulfilled, motivated and productive, and we play a greater role in contributing to our organisation’s success.
As a bonus, by designing such channels a company will be meeting soft law expectations of companies, which are increasingly becoming hard law. These expectations are to create a rights-respecting culture, conduct human rights due diligence and provide remedy. Indeed, it’s challenging for a company to state that it places importance on respect for people, when there are no channels in place to collect their concerns; or for a company to say it conducts human rights due diligence, when there are no avenues for stakeholders to bring issues to the company’s attention.
This explains why grievance mechanisms feature purposefully in recent laws related to business and human rights. Consider the example of the French 2017 duty of vigilance law that requests large French companies to develop “an alert mechanism that collects reporting of existing or actual risks, developed in working partnership with the trade union organizations representatives.” Large public companies will also know that evidence of the existence of effective grievance mechanisms is becoming a barometer for investors – a way for investors to gauge the commitment a company has towards workers. All recent company benchmarks (such as the Corporate Human Rights Benchmark and KnowtheChain) feature grievance mechanisms as a key differentiation when ranking companies on their human rights performance.
Grievance mechanisms are not new for companies. Whistleblower hotlines have long enabled employees to raise concerns about compliance with company policy and the law, and sales departments are well trained in responding to customer complaints related to the company’s products.
What is new is a reflection on the kinds of concerns that can be raised, and who can raise them. Soft law now asks that companies look for risks to people connected to their business – including beyond their own employees. Companies are also asked to seek to put harm right (provide ‘remedy’) if they have caused or contributed to it; and to push companies in their value chains to do so as well – especially where the harm is viewed as particularly severe (workers that have paid significant recruitment fees which leaves them unable to leave their factories, or children who are taken out of school to support their parents in the fields, for example).
Soft law provides guidance to companies, based on company experience, of what it takes to create ‘effective’ grievance mechanisms. These effectiveness criteria ask companies to think about the mechanism’s legitimacy, accessibility, predictability, equitability, transparency and rights-compatibility, as well as whether the mechanism is a source of continuous learning. (You can find a list of the questions companies can ask themselves as they seek to meet these effectiveness criteria here).
Company practice seeking to implement these effectiveness criteria is illustrative for companies that are reflecting on grievance mechanisms. Through my work as an advisor, I have had the opportunity to review the effectiveness of company grievance mechanisms’ in practice in a range of sectors, based in large part on interviews with complainants, company representatives and civil society. I have also been acting as Ombudsperson for a logistics company’s grievance process for the past three years. (I have recently stepped down from my remedy-focused role for Hermes Parcelnet, as the company is transitioning into its second phase).
Eight questions stand out if your company is thinking about creating a grievance mechanism. At the end of the day, this is about placing the human at the centre of the company’s efforts.
A number of factors need to be in place for a grievance mechanism to work. People need to know about it, they need to feel that their concerns will be treated seriously, that they don’t risk being singled out or losing their job as a result – and the list goes on. If the enabling environment is not conducive to worker voice in general, it will be a challenge for the grievance mechanism to meet its intended objective. Measures can be put in place in parallel to the creation of the mechanism to seek to promote worker–management dialogue. This ensures that the grievance mechanism is viewed as the back-end, when other efforts to raise issues, before they have become grievances, have failed.
Beyond the design and creation of the grievance mechanism, the running of the mechanism entails the development of a system that kicks in once a grievance has been lodged. This entails development of the back-end process, as well as allocation of certain resources (e.g. staff time, training, investigations, communications). While it can be challenging to anticipate how many grievances will be raised and therefore what corresponding resources will be needed, keep in mind that the objective at first is for a lot of grievances to be lodged, as this demonstrates that people know and trust the mechanism.
Although a mechanism may be created to capture ‘human rights complaints’, it is typically unclear to a complainant what this means in practice. It’s paramount to get the balance right between being clear what the process is intended to capture, while ensuring that we are not inadvertently restricting access by being too prescriptive. In case of doubt, it’s better to collect too much information rather than too little: this can help the company collect early warning signs of more severe issues to come.
Although the grievance may relate on its face to one issue, speaking to the complainant directly will often reveal other concerns at play. Humanising grievance mechanisms is also about striking the balance between formalising a process and speaking face-to-face with complainants in a safe space. This is not easily done, especially when processing a large number of grievances and when the grievance process is managed from a different location than where the complainant is located.
Complaints do not occur in isolation, and there is commonly an eco-system of factors within which an individual complaint sits. If a mechanism is created for communities surrounding a mining site, where can the security guards go to voice frustrations with their own working conditions (which in turn could be at the source of misuse of force against communities)? If a mechanism is created for supply chain workers, how can their managers raise concerns, for instance about meeting their business targets (which could in turn be leading them to harass their workforce)? If a mechanism is created for drivers, where can those managing the hubs from which drivers collect parcels go to discuss their challenges (which could in turn result in extra pressure being placed on drivers)?
What mechanisms are available to those managing the grievance mechanism to ensure that findings are acted upon? Although there may be one function that sponsors the mechanism (typically compliance, legal or corporate responsibility), the business as a whole needs to understand the role various departments may play (e.g. operations, security, procurement) in the grievance being remediated. Remedy can only work if this is seen as a company-wide response, and this should be considered in the design and implementation of the mechanism.
Some grievances are isolated cases – linked to a specific situation at a certain point in time. But in a number of cases, patterns can be extracted. Perhaps a business target is inadvertently encouraging certain types of behaviours, or the lack of a business process is leading to inconsistent behaviours. Studies teach us that, in general, when people treat others poorly, it is because they are in a setting which pushes them towards this behaviour. A process for looking at the bigger picture is needed, to ensure that business changes can be made to stop grievance from happening in the first place.
There are limitations to what a grievance mechanism can capture. For instance, individuals who have been trafficked into a factory in the UK may be so fearful of the consequences of speaking up that, even with all the best ‘non-retaliation’ guarantees in the world, they would not use a grievance mechanism. Or a woman who has been abused may not wish to use a grievance mechanism because she does not want to re-live the incident. Being mindful of these limitations entails complementing the grievance mechanism with other measures. Further, some types of grievances cannot be adequately remediated at an individual level through a grievance mechanism: they may entail broader business model changes for senior management’s consideration.
A number of individuals working in companies have confided in me that they feel overwhelmed when considering the creation of grievance mechanisms, for fear of missing some of the effectiveness criteria and placing a lot of resources on a mechanism that turns out to be ineffective or, worse, back-fires.
A good rule of thumb is to find ways to engage early on with those you are designing the mechanism for, whether it’s by sharing tea with them in a community, giving them a hand during their shift on the shop floor or sharing a ride with them during their deliveries.
Further, the example of logistics company Hermes Parcelnet, that decided to complement its grievance mechanism with the recognition of trade union rights and the provision of a range of benefits, demonstrates that a grievance mechanism is only one piece of a larger puzzle.
Focusing on building channels for workers to express themselves on an ongoing basis, before incidents crystallise as grievances, is the way to go to keep the lights switched on and enable ongoing visibility into working practices.