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Guiding Principle 31

In order to ensure their effectiveness, non-judicial grievance mechanisms, both State-based and non-State-based, should be:

(a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes;

(b) Accessible: being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access;

(c) Predictable: providing a clear and known procedure with an indicative time frame for each stage, and clarity on the types of process and outcome available and means of monitoring implementation;

(d) Equitable: seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms;

(e) Transparent: keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake;

(f) Rights-compatible: ensuring that outcomes and remedies accord with internationally recognized human rights;

(g) A source of continuous learning: drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms;

Operational-level mechanisms should also be:

(h) Based on engagement and dialogue: consulting the stakeholder groups for whose use they are intended on their design and performance, and focusing on dialogue as the means to address and resolve grievances.

Commentary

A grievance mechanism can only serve its purpose if the people it is intended to serve know about it, trust it and are able to use it. These criteria provide a benchmark for designing, revising or assessing a non-judicial grievance mechanism to help ensure that it is effective in practice. Poorly designed or implemented grievance mechanisms can risk compounding a sense of grievance amongst affected stakeholders by heightening their sense of disempowerment and disrespect by the process.

The first seven criteria apply to any State-based or non-State-based, adjudicative or dialogue-based mechanism. The eighth criterion is specific to operational-level mechanisms that business enterprises help administer.

The term “grievance mechanism” is used here as a term of art. The term itself may not always be appropriate or helpful when applied to a specific mechanism, but the criteria for effectiveness remain the same. Commentary on the specific criteria follows:

(a) Stakeholders for whose use a mechanism is intended must trust it if they are to choose to use it. Accountability for ensuring that the parties to a grievance process cannot interfere with its fair conduct is typically one important factor in building stakeholder trust;

(b) Barriers to access may include a lack of awareness of the mechanism, language, literacy, costs, physical location and fears of reprisal;

(c) In order for a mechanism to be trusted and used, it should provide public information about the procedure it offers. Time frames for each stage should be respected wherever possible, while allowing that flexibility may sometimes be needed;

(d) In grievances or disputes between business enterprises and affected stakeholders, the latter frequently have much less access to information and expert resources, and often lack the financial resources to pay for them. Where this imbalance is not redressed, it can reduce both the achievement and perception of a fair process and make it harder to arrive at durable solutions;

(e) Communicating regularly with parties about the progress of individual grievances can be essential to retaining confidence in the process. Providing transparency about the mechanism’s performance to wider stakeholders, through statistics, case studies or more detailed information about the handling of certain cases, can be important to demonstrate its legitimacy and retain broad trust. At the same time, confidentiality of the dialogue between parties and of individuals’ identities should be provided where necessary;

(f) Grievances are frequently not framed in terms of human rights and many do not initially raise human rights concerns. Regardless, where outcomes have implications for human rights, care should be taken to ensure that they are in line with internationally recognized human rights;

(g) Regular analysis of the frequency, patterns and causes of grievances can enable the institution administering the mechanism to identify and influence policies, procedures or practices that should be altered to prevent future harm;

(h) For an operational-level grievance mechanism, engaging with affected stakeholder groups about its design and performance can help to ensure that it meets their needs, that they will use it in practice, and that there is a shared interest in ensuring its success. Since a business enterprise cannot, with legitimacy, both be the subject of complaints and unilaterally determine their outcome, these mechanisms should focus on reaching agreed solutions through dialogue. Where adjudication is needed, this should be provided by a legitimate, independent third-party mechanism.

What National Action Plans say on Guiding Principle 31

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PLANNED ACTIONS:

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] states that 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 NAP explains that “it is the duty of the authorities to ensure effective remedies for the victims of human rights violations by companies and organizations. This is through appropriate judicial, administrative, legislative or other means. ..Reparation can take place in a variety of ways, ranging from public apologies to penalties (criminal or administrative), including compensation, rehabilitation, financial and non-financial compensation, and prevention of violations, for example through injunctions or guarantees of non-recurrence. Reparation procedures must be neutral, protected against corruption and free from political or other attempts to influence the outcome.

Similarly, Action point 3, Formulation de recommandations en vue d’améliorer l’accès à un mécanisme de reparation judiciaire [Recommendations for improving access to a judicial grievance mechanism] mentions that reparation procedures “must be neutral, protect against corruption and be free from any attempt, political or other, to influence its outcome.”

Pillar 3: Access to Redress Mechanisms

Strand 4: Criteria for the Effectiveness of Non-Judicial Grievance Mechanisms [pages 63-64]

4.1 All actions contained in this Plan related with state-based non-judicial mechanisms and non-state-based mechanisms will refer to these Principles of Effectiveness for their implementation and continuous improvement.

4.2. All training and other actions included in this Plan addressing the subject of business and human rights will make special reference to non-judicial grievance mechanisms available in Chile and the principles of effectiveness.

Appendix 2 – Overview of the implementation of the access to remedy

Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 36]

— The Danish Mediation and Complaint Handling Institution has been established in accordance with the international criteria for non-judicial mediation and grievance mechanisms (UNGPs) as well as the criteria for national contact points as stated in the OECD Guidelines for Multinational Enterprises (Visibility, Accessibility, Transparency, Accountability):

To ensure legitimacy the institution has been established in Danish law
Anyone can submit a complaint to the Mediation and Complaints-Handling Institution
A description of the complaint handling procedure has been made public along with an indicative timeframe for each step in the process
The chairman shall assist the weaker party that may require special support, but also assist companies, for example, so that the chairman can help to conclude a case quickly and in a way that also takes the company’s situation into account. The Mediation and Complaints-Handling Institution for Responsible Business Conduct may allocate advisers to one or both parties. The purpose is to ensure that the mediation outcome is in the interests of both parties.
The institution will inform the public of the cases the institution is handling. For every step in the case handling the institution will make a statement which will be made publicly available on the institution’s website. Information from a case is subject to the access to information act once the case has been concluded. Finally, the Institution will prepare an annual report that is published and also discussed with the Council for Corporate Social Responsibility and the OECD’s Investment Committee, in order to improve the work of the Institution.
The purpose of the institution is to help solve conflicts in accordance with the OECD Guidelines for Multinational Enterprises.
In addition to considering concrete incidences of infringement, the Mediation and Complaints-Handling Institution also has the object of promoting the implementation of the OECD Guidelines for Multinational Enterprises, and compliance by Danish companies, authorities and organisations. The Mediation and Complaints-Handling Institution will also conduct activities that support the CSR efforts of Danish companies, authorities and organisations, for example as guidance in relation to the consideration of concrete cases, or in information and education activities. The institution will also work with other national contact points and the OECD Investment Committee in terms of concrete complaint handling as well as promotional activities.
Dialogue and mediation play a central role in the complaint handling.

IV. Government responses

Current Activities and Future Commitments

B. Operational Principles

Guiding Principle 31

Italy recognises that judicial state-based mechanisms are at the core of the State’s ability to guarantee the full access to effective remedy against human rights abuses; at the same time, Italy yet acknowledges the need of developing appropriate non-state based grievance mechanisms and to this purpose the Government will encourage civil society organisations, trade unions and business associations to set up and activate grievance mechanisms (such as online network and tools, corporate mechanisms, or multi-stakeholders instruments) to enable the formulation, reception, and evaluation of claims for alleged human rights abuses and the proposals of adequate remedies.

4.3 Criteria for ensuring effective non-judicial grievance mechanisms [page 41]

The 31st principle sets out criteria for ensuring the effectiveness of non-judicial grievance mechanism. The criteria are designed to ensure that those for whom the mechanism is intended are aware of it, have confidence in it and are in a position to use it. Companies that establish grievance mechanisms should familiarise themselves with the criteria and seek to satisfy them. The OECD National Contact Point Norway follows these criteria.

5.8 Pillar 3: access to remedy

Guiding Principle 31 [page 40]

The Federal Council supports the effectiveness criteria described in Guiding Principle 30, and will endeavour to pursue all of its action to promote non-judicial and non-governmental grievance mechanisms in accordance with them. It is not planning any separate activities.