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Guiding Principle 22

Where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes.

Commentary

Even with the best policies and practices, a business enterprise may cause or contribute to an adverse human rights impact that it has not foreseen or been able to prevent.

Where a business enterprise identifies such a situation, whether through its human rights due diligence process or other means, its responsibility to respect human rights requires active engagement in remediation, by itself or in cooperation with other actors. Operational-level grievance mechanisms for those potentially impacted by the business enterprise’s activities can be one effective means of enabling remediation when they meet certain core criteria, as set out in Principle 31.

Where adverse impacts have occurred that the business enterprise has not caused or contributed to, but which are directly linked to its operations, products or services by a business relationship, the responsibility to respect human rights does not require that the enterprise itself provide for remediation, though it may take a role in doing so.

Some situations, in particular where crimes are alleged, typically will require cooperation with judicial mechanisms.

Further guidance on mechanisms through which remediation may be sought, including where allegations of adverse human rights impacts are contested, is included in chapter III on access to remedy.

What National Action Plans say on Guiding Principle 22

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PLANNED ACTIONS:

Action point 1, Elaborer une boîte à outils destinée aux entreprises et organisations concernant les droits de l’Homme [Develop a toolkit for companies and organizations on human rights], presents the action of developing, in collaboration with experts and main human rights stakeholders and organizations, a toolbox that will help companies prevent human rights violations and promote the respect for human rights through their activities. This “Toolbox” will be composed of different elements including how companies can create grievance mechanisms; launch initiatives for data collection in order to prepare human rights commitments and policy statements; and apply proper human rights due diligence.

In context of Action point 2, Elaborer une brochure sur les mécanismes de réparation liés à l’autorité publique [Prepare a brochure on grievance mechanisms related to public authority] the NAP explains that in Belgium, various legal procedures (both judicial and extra-judicial procedures and grievance mechanisms) form the basis of the grievance system. Mediation procedures can be accessed through the OECD NCP, and different provisions included in the criminal law can be imposed through the Belgian courts, etc. However, many of these grievance mechanisms are insufficiently known about. The federal government will engage in a research mission to list all of the different state-based mechanisms (both judicial and non-judicial) that can be used in cases of human rights violations by companies or organizations (Belgian or foreign). The results of this research will be integrated into a readable, comprehensible and practical brochure that will be made available to stakeholders, both online and in print (limited). This brochure will focus on companies, organizations and victims of human rights violations. Both procedural and substantive aspects of these grievance mechanisms will be addressed and will be available in Dutch, French, German and English.

Pillar II. The Corporate Responsibility to Respect

Removing the effects of loss or damage [pages 36-37]

The Government of the Czech Republic recommends that businesses who, even if only hypothetically, could encounter human rights risk should have procedures in place in case their operations cause human rights loss. The aim should be to find a peaceful solution to disputes and to provide a remedy.

Although everyone is entitled to take their dispute to a state body, i.e. an authority or a court, for an authoritative decision, judicial proceedings are not always the most appropriate way forward for all types of disputes. What is more, litigation could generate negative publicity for a business. Where the extent and nature of an infringement allow, it is advisable to seek an out-of-court settlement. While this is not suitable for all types of dispute, it can often be faster, less costly and more readily accepted by the victims.

Alternative dispute resolution can take the form of structured dialogue, mediation or arbitration. A wide panoply of remedies is available. Besides cash satisfaction, non-financial remedies should also be offered, in particular a public apology, the restoration of what has been damaged to its previous condition, the commissioning and payment of professional services (e.g. medical services, the clean-up of a water source), and the provision of non-monetary assets (e.g. replacement land, goods). The victims’ wishes and interests are of particular importance when deciding how to proceed. Safeguards to prevent a recurrence of the infringement are integral to this mechanism.

Remedial mechanisms may be applied in cooperation with other (external) entities. For example, it is possible to draw on the services of certain state bodies providing services for the out-of-court settlement of consumer disputes (the Czech Trade Inspection Authority, the Czech Telecommunication Office, the Financial Arbitrator, and the Energy Regulatory Office).

If a dispute does end up in court, businesses should not back themselves into a defensive corner. In many cases, it may be more appropriate to admit to certain individual errors that cannot be disputed and then make an attempt at reaching an agreement or conciliation.

The logical end result is the adoption of measures preventing a recurrence of any such incident in the future.

Documents and sources of information

The Office of the Government of the Czech Republic collects model documents, guidelines and materials intended for businesses to improve the performance of tasks in this chapter, and posts them on the National Corporate Social Responsibility Portal: http://narodniportal.cz/

III. Access to Remedy

Non – judicial mechanisms

At the national level

2.6 Grievance mechanisms in companies

Proposal for Action No. 17 [page 59]

Actions to be implemented

Encourage the establishment of grievance mechanisms by businesses that meet the following criteria for implementation:

They support dialogue, consultation and complaints for people who consider themselves adversely impacted;
Information is provided on the existence of these mechanisms;
Any complaints are dealt with at the earliest possible opportunity;
Reports on the implementation and/or results of these mechanisms are provided to stakeholders.

3.4 Grievance mechanisms for human rights violations [page 35]

The 22nd principle concerns remediation. Grievance mechanisms are described in chapter 4. It is important to distinguish between judicial and non-judicial mechanisms. Cases involving violations of national legislation are dealt with by the judicial system or the appropriate appeals body.