Editor’s note: Abdurrahman is currently working for Doing Business Right project at the Asser Institute as an intern. He received his LL.M. International and European Law from Tilburg University and currently he is a Research Master student at the same university.

The collapse of the Rana Plaza attracted public attention from various parts of the world. As a result, the demand to ensure that businesses do not contribute to or commit human rights violations, particularly multinational enterprises (MNEs) which can easily engage in forum shopping between states with lax regulations, started to make itself heard. This increased public interest drove national governments to start addressing this issue in an attempt to prevent MNEs from getting involved in human rights abuses along their supply chains.  In this respect, to deal with the human rights abuses committed by MNEs in the ready-made garment (RMG) sector and beyond, numerous transnational and national initiatives have emerged in different forms since the Rana Plaza disaster. These initiatives include agreements (e.g. the Bangladesh Accord on Fire and Building Safety)  with binding commitments, traditional voluntary CSR-based multi-stakeholder initiatives (e.g. the Alliance for Bangladesh Worker Safety), domestic legal (e.g. the UK Modern Slavery Act and the French law on the duty of vigilance), administrative measures (e.g. the reform of the Department of Inspections for Factories and Establishments in Bangladesh for better factory and labour inspections) or agreements between governmental bodies, businesses and some other stakeholders (e.g. the German Partnership for Sustainable Textiles and the Dutch Agreement on Sustainable Garment and Textile).

These concerted efforts, to ensure responsible business conduct show an extreme variety in terms of their scope, approaches and parties involved.  In particular, the French law on the duty of vigilance and the Dutch agreement on sustainable garment will be the focus on this blog since while the adoption of the former was accelerated by the disaster, the latter was an indirect response to it. It is crucial to scrutinise the implementation of these initiatives and whether or not they positively transform the business-as-usual in the RMG sector. In this blog, after brief explanations of the French and Dutch initiatives, some of the concerns and problems, which may be encountered in their implementation process, will be presented.

The French Duty of Vigilance Law

The French law, also known as ‘the French Duty of Vigilance Law’, entered into force after a lengthy legislative process on 27 March 2017.[1] Although the law was proposed at first during the presidential campaign in 2012, French MPs did not bring the legislative proposal to the table for a while.[2] However, the Rana Plaza disaster turned the tide and gave a decisive push to the legislative procedure, and that is also the reason why the law is unofficially called ‘Rana Plaza Law’.[3] Since the emergence of the first version, the bill encountered a lot of opposition, particularly from business lobby groups, and underwent many changes until it was finally adopted. After the definitive adoption of the law by the National Assembly, some MPs appealed to the Constitutional Council, contesting every paragraph of the law. Finally, the Council, partially, validated the law on 23 March 2017. In doing so, it scrapped the possibility to impose a civil fine to companies, which do not put in place a vigilance plan in line with the law. It censored the payment of a civil fine, which is a criminal sanction in France, because some concepts of the law such as “reasonable vigilance measures” and “adapted risk mitigation actions” were deemed not specific enough to meet the principle of legality of criminal sanctions.^[4]

The final version of the bill is expected to affect around 150-200 companies and covers every business sector. The law is applicable to two different types of companies:

• Companies employing at least five thousand employees in France, or
• Companies employing at least ten thousand employees worldwide

The companies concerned are requested to prepare effective vigilance plans covering their environmental and human rights impacts. The activities of a parent company, its direct or indirect subsidiaries, and the subcontractors, and suppliers with an established business relationship with the companies fall within the scope of the law. Although the burden of proof is on the claimant, NGOs working on human rights and the protection of the environment, trade unions and the victims will be able to bring a case before French courts on the basis of the law. The vigilance plan should include measures aimed at risk identification and prevention of serious human rights violations resulting from the company’s operations, measures to monitor and assess the impacts of the actions implemented and procedures to regularly assess the operations of its subsidiaries, subcontractors or suppliers. Thus, the expected vigilance plan is not an ex-post reporting, rather an ex-ante prevention plan. This is supposed to be in line with the idea of human rights due diligence enshrined in the UN Guiding Principles on Business and Human Rights, stating that a company should initiate its due diligence as early as possible in the development of a business relationship and identify and assess actual or potential adverse human rights impacts of their operations and business ties.^[5] However, the obligation for companies is not to prevent human rights violations but instead to prepare, publish and enforce a vigilance plan. If a company fails to do so, even after a formal notice by a concerned party, a judge may force the company to adopt a complete vigilance plan and impose a daily fine until it complies with this obligation. If the operations of a non-compliant company result in human rights violations, the victims will be able to seek civil redress in French courts.

At first glance, the law might seem an ambitious effort, particularly in terms of its material scope as it is not restricted to a specific economic sector. Similarly, the scope of the rights that companies should observe is broad, namely every human rights, when compared to other national legislations aimed at preventing specific business-related human rights abuses, such as the Modern Slavery Act or the draft Dutch legislation on child labour due diligence. While, these other national legislations focus on a limited range of human rights, the French law expects the companies to exercise due diligence related to an extremely broad range of human rights, namely for “the prevention of severe violations of human rights and fundamental freedoms, serious bodily injury or environmental damage or health risks resulting directly or indirectly from the operations of the company and of the companies it controls.”[6] Yet, there are many open questions related to the content and implementation of the vigilance plan. What should a vigilance plan concretely entail to comply with the French law? Should it include specific local investigations far upstream in the supply chains of the companies? What types of actions are expected from a company when it identifies a specific human rights risk? When is a specific human rights violation sufficiently connected to a failed vigilance plan to trigger civil liability? In practice, the law does not distinguish between different grounds for liability such as causation, contribution or link to the adverse impact.[7] Considering the complexity of the global supply chains and numerous factors that can cause human rights violations independent from a company subject to the French law, it will always be very difficult to attribute a specific violation to a specific company. Lastly, a concern expressed by some academics is that formal requirements divert the attention from substance, and risk turning compliance into a box ticking exercise. This could very well be the case with the due diligence requirements introduced by the French law as companies may try to reduce the financial impact of introducing and implementing a vigilance plan.[8] Bearing all this in mind, it is probably fair to say that the implementation of the French law will raise many issues which will define its final effects/impacts and which could still bitterly disappoint the wave of hope triggered by its initial adoption.

The Dutch Agreement on Sustainable Garments and Textile

For its part, the Dutch Agreement on Sustainable Garment and Textile^[9] (Agreement) was negotiated and agreed under the auspices of the Social and Economic Research Council of the Netherlands (SER). It was one of the first examples of an initiative undertaken at the national level to promote international responsible business conduct in the garment and textile sector following the Rana Plaza collapse. It is one of several sectoral multi-stakeholder Agreements on International Responsible Business Conduct (IRBC Agreements) and, as such, provides for a framework by which companies work with government and other stakeholders to tackle specific problems and achieve improvements on substantial risks within a specified time frame, as well as elaborate shared solutions to problems.^[10] The Agreement was signed in July 2016, by a coalition comprising, the Dutch government, 55 business and their representative organisations (then constituting about 30% of the garment sector in the Netherlands), various non-governmental organisations (NGOs) and two Dutch trade unions.^[11] As of October 2017, 67 companies had signed the agreement;^[12] the Agreement aims to reach 50% of market share by 2018 and 80% by 2020.^[13]

The Agreement, expressly aims to build upon and give effect to the United Nations Guiding Principles on Business and Human Rights (UNGPs), the OECD Guidelines for Multinational Enterprises, as well as implement the sector-specific OECD Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector (OECD Guidance). Various commitments are included in the Agreement with respect to the enterprises' due diligence obligations, such as, creating annual action plans, complying with the Agreement’s dispute settlement mechanisms and authorising the Secretariat of the Agreement to monitor and assess the compliance with the Agreement. The Agreement introduces a dispute resolution system which solves disputes between a company and the Secretariat over the assessment of an action plan and, as such, is limited to the review of actions plans rather than operationalised due diligence processes (with an independent Complaints and Disputes Committee adjudicating whether, in view of its action plan, a company is acting in accordance with the Agreement).  The system also includes a complaint procedure, which contemplates the submission of grievances by any stakeholder, whether a party to the Agreement or not, suffering injury, loss or damage by any company party to the Agreement. The parties are expected to exercise due diligence in a variety of nine themes, ranging from labour rights, such as, discrimination at work, forced labour and child labour to environmental issues like water pollution, use of chemicals and animal welfare.[14] Lastly, compared to the French law, the personal scope of the Agreement is much broader. Whereas the French law covers approximately 150-200 French companies with huge number of employees, since the Agreement was intended to be applied to the entire Dutch garment and textiles sector, small and medium-sized enterprises are also incentivized to become a party to the Dutch agreement by developing an adjusted due diligence guide and providing assistance to enable them to exercise due diligence effectively.[15]

Some characteristics of the Agreement could have a negative impact on its successful implementation. In terms of the commitments of the parties, Duval and Partiti note their broad range (going beyond the scope of the UNGPs with respect to value chain risks) and ostensible alignment with the OECD Guidance in certain respects, while extending beyond it in others, particularly with respect to the form of the "action plans" envisaged under the architecture of the Agreement.^[16] However, the breadth of the commitments under the nine themes may raise some questions concerning the knowledge, capacity, and willingness of companies to exercise due diligence in all these nine themes. It may not be realistic to expect that all the parties to the Agreement, regardless of their sources and size, will conduct due diligence and identify measures to address issues in all of the themes. Thus, Theeuws and Overeem of SOMO are skeptical of the Agreement's ability to benefit garment workers in the supply chain.  With reference to the first annual report of the Agreement in December 2017, theynote that the majority of participating businesses do not know the human rights risks in their supply chains and have no plan of action to address abuses. Another point about the Agreement that might raise questions, is related to the transparency of its operation and effectiveness of its dispute resolution mechanism. Duval and Partiti stress that the Agreement takes an "opaque" approach to information-sharing and action plans are not made public in a disaggregated form.^[17] It also remains unclear to what extent operationalised due diligence processes will actually be the subject of review, and scope for transparency in the review process is limited; the Agreement thus "risks falling short of the UNGPs’ strive for the transparency and public disclosure of the due diligence commitments of companies, as enshrined in Principle 21".^[18] Furthermore, there are some clouds over the accessibility of the Agreement’s complaint mechanism for external stakeholders, which Duval and Partiti further emphasize.[19] Namely, not every stakeholder can use the complaint mechanism, but only those stakeholders, to whom the issue is of material significance. Yet, there is uncertainty as to the meaning of material significance as it is open to different interpretations. Likewise, if there is another equivalent mechanism, that can receive the complaint to which the attacked company is a party, the complaint will be referred to that mechanism. Although elements of equivalence can be found in the Agreement,[20] there is no clarity as to how different stakeholders around the globe will be informed about the existence of an equivalent grievance mechanism.  If the aims of the Agreement are to reduce the adverse human rights impacts of the garment and textile industry and to assist businesses to address them,[21] then the breadth of the commitments, the lack of transparency on some aspects and some legitimate concerns with respect to the accessibility of the dispute settlement mechanism might detrimentally affect the success of its implementation.

Conclusion

The number of national initiatives aimed at addressing the problem of human rights violations   inside transnational supply chains (in the RMG sector in particular) soared dramatically after the Rana Plaza collapse. In that regard, national states can also play an important role. Some enacted legislations and many more became involved in multi-stakeholder initiatives to prevent or discourage enterprises domiciled or headquartered in their jurisdictions from committing human rights violations abroad. Two of these national initiatives are the French Law on Duty of Vigilance and the Dutch Agreement on Sustainable Garments and Textile discussed in my blog. While the French law is a traditional hard law instrument, the Dutch initiative is a voluntary agreement, which contains binding commitments. Unlike the Dutch agreement, which specifically focusses on the garment and textiles, the French law has a wider scope.

As to dealing with the human rights violations in the RMG sector, national initiatives are not irrelevant they can effectively complement (and sometimes supplement) transnational ones. For instance, drafting an international treaty is a lengthy procedure and will be displeased, when asked to rely on the unlikely support of many national government, it’s an uphill battle. This is clearly visible in the difficulties faced by the working group on transnational corporations. Considering that a potential treaty, after its tabling, will have to be ratified by states, it becomes clear that there is still a long way to go. However, national initiatives, be they hard or soft, can be put in place relatively quickly, since the number and diversity of parties involved tends to be lower. Moreover, they can, as is the case of the French law, rely on the support of existing judicial institutions, without the need to engage in challenging institution building, on an international level. However, if they can have some advantages in comparison to international initiatives, they might also have some shortcomings. They do not escape the implementation challenge. Lofty commitments on paper can turn into paper tigers if they are not concretized ex post by strong institutions responsible for their enforcement and interpreting the rules in a strict manner. As to the mandatory French law, for instance, the possibility that the obligation of having a vigilance plan in place be implemented as a box ticking exercise might prove problematic. For its part, the quality of the implementation of the voluntary Dutch agreement is difficult to assess in light of the limited degree of transparency of its operation. Furthermore, the weaknesses with regard to the dispute resolution mechanism are also worrying. This dynamism and the great variety of different initiatives, both transnational and national, do not necessarily translate into the best outcomes, and they might fall short in realizing their, sometimes, ambitious goals.  In the end, the proof of the pudding will be in the eating and the devil will be in the implementation. It is how national mechanisms are implemented, rather than just their formal voluntary/mandatory nature, that will determine their success.

[1] Friends of the Earth France and ActionAid France, End of the Road for Transnational Corporations? Human rights and environment: from a groundbreaking French law to a UN treaty (October 2017), 4-5.

[2] ibid., 6.

[3] Madeleine Cuff, France Duty of Vigilance Law one year on: What's changed for French corporates? (Business Green, 2018).

[4] Sandra Cossart, Jerome Chaplier and Tiphaine Beau de Lomenie, “The French Law on Duty of Care: A Historic Step Towards Making Globalization Work for All” (2017) 2(2) Business and Human Rights Journal 317, 321.

[5] UN Human Rights Council, Protect, respect and remedy: a framework for business and human rights: report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (7 April 2008), 17-20.

[6] loi n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre (FR) Article 1.

[7] Stéphane Brabant and Elsa Savourey, A Closer Look at the Penalties Faced by Companies (2017) 3.

[8] Cuff (n 3).

[9] Social and Economic Council of the Netherlands, Agreement on Sustainable Garment and Textile (2016).

[10] Social and Economic Council of the Netherlands, Agreements on International Responsible Business Conduct, Advisory Report 14/04 (2014).

[11] Social and Economic Council of the Netherlands, 75 Signatures Endorse Sustainable Garment and Textile Sector agreement (4 July 2016).

[12] See "About this Agreement".

[13] Agreement on Sustainable Garment and Textile (n 9), 6.

[14] ibid., 15.

[15] ibid., 17.

[16] Antoine Duval and Enrico Partiti, "The UN Guiding Principles on Business and Human Rights in (National) Action: The Dutch Agreement on Sustainable Garment and Textile" (forthcoming in Netherlands Yearbook of International Law 2018), T.M.C. Asser Institute for International & European Law, Asser Research Paper Series 2018-02, 13-16.

[17] ibid., 18.

[18] ibid., 24.

[19] ibid., 22-23.

[20] Agreement on Sustainable Garment and Textile (n 9), 12.

[21] ibid.,4.

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

The consumer goods industry is shaped by businesses’ desire to engage with the best-quality suppliers at the cheapest price in order to sell goods at a high-profit margin in the burgeoning consumer markets. Accordingly, they continue to build their value chains in order to provide goods to consumers. The resulting effect of this is that potential human rights risks and impacts are likely to arise in the supply chains of businesses that operate in the industry. Risks that often arise in this sector include forced labour, non-compliance with minimum wage laws and excessive work hours, land grabbing and discrimination. Accordingly, businesses such as Unilever face the challenge of preventing, mitigating and addressing adverse human rights impacts in their supply chains through conducting human rights due diligence (HRDD). As Paul Polman (former CEO of Unilever) has stated: ‘We cannot choose between [economic] growth and sustainability—we must have both.’

This fourth blog of a series of articles dedicated to HRDD is a case study looking at how HRDD has materialised in practice within Unilever’s operations and supply chains. It will be followed by another case study examining another that has also taken steps to operationalise the concept of HRDD. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect of human rights by businesses.

Company Background[1]

Unilever PLC (Unilever) is a consumer goods company that is co-headquartered in the United Kingdom and the Netherlands. It is considered to be one of the world’s leading consumer goods company, making and selling around 400 brands (including Dove, Lipton and Magnum) in the personal care, foods, home care and refreshment categories in more than 190 countries. Unilever is also the second largest advertiser globally and creates content to market its products using digital channels. It employs more than 155,000 people globally and over two billion people use its products daily.[2]

Unilever has a complex global value chain, with its global manufacturing operations spanning across approximately 76,000 suppliers and 300 factories in 69 countries in order to produce products of almost 19 million tonnes. Its products are distributed through a network of more than 400 warehouses to 26 million retail stores, including large supermarkets to small convenience stores and e-commerce channels.[3] 

Unilever endorsed the UNGPs in 2011 and recognises that it has ‘the responsibility to respect human rights and the ability to contribute to positive human rights impacts.’[4] It states that it follows and supports the OECD Guidelines.[5] Unilever acknowledges that there is ‘both a business and a moral case for ensuring that human rights are upheld across [its] operations and [its] value chain.’ As a result, it seeks to identify human rights risks that it may be involved in through its activities or business relationships through conducting HRDD and integrating the responses into its policies and internal systems, acting on the findings, tracking its actions and communicating with its stakeholders.[6] Unilever was the first company to pilot the Shift and Mazars UN Guiding Principles Reporting Framework, which resulted in its Human Rights Report 2015 – Unilever’s disclosure to the Reporting Framework in 2015 is accessible here.

Unilever’s human rights work is overseen by the CEO and supported by the Leadership Executive, including the Chief Supply Chain Officer, which includes the Chief Supply Chain Officer, Chief Legal Officer, Chief Sustainability Officer and the Global Vice President for Social Impact.[7] Unilever’s Procurement Team leads its supply chain efforts. There is no publically available information on the size and resources of this team, its role or where team members are located.

Identification and Assessment of Risks

Unilever’s process for identifying its salient human rights risks started with a workshop facilitated by Shift. Unilever considered the range of potential human rights impacts resulting from its activities, and prioritised those likely to be the most severe were they to occur, based on how grave the impacts to the rights-holder could be, how widespread they are and how difficult it would be to remedy any resulting harm.[8] Unilever drew from previous conversations with external bodies, including the Work Economic Forum Human Rights Global Agenda Council, the Global Social Compliance Programme and the UN Global Compact.[9] It also drew from external data sources such as governments, international agencies and risk organisations that assist it to monitor changes in human rights situations in the countries in which it operates, as well as from understanding of the perspectives of affected stakeholders and verification with expert stakeholders of the salient issues identified.[10]

Following this initial risk assessment, Unilever conducts regular human rights impact assessments (HRIAs), 'which include on-site visits by third-party experts who engage and consult rights-holders and other stakeholders.’[11] For example, in 2016 it commissioned a human rights impact assessment of its own operations and value chain in Myanmar in order to identify impacts on 'local right-holders, including workers, their families and other community members'.[12] This assessment 'uncovered regular patterns of discriminatory practices within some suppliers in [its] extended supply chain'. In addition, during the assessment of the harvesting of palm sugar activity, 'children were found to be working alongside their parents as they prepared palm juice, whilst palm sugar tree climbers were using unsafe homemade ladders to pick the fruit'.[13]

Unilever considers that its suppliers play a critical role in helping it source responsibly and sustainably.[14] Accordingly, Unilever developed a Responsible Sourcing Policy, which sets out Unilever’s expectations with regards to the respect for the human rights, including labour rights, of the workers in its extended supply chain. It is based upon 12 fundamental principles that are derived from internationally recognised standards and include treating all workers equally with respect and dignity, paying workers fair wages and ensuring working hours of all workers are reasonable.

Clauses are included in supplier contracts in an effort to ensure that suppliers respect and comply with a set of Mandatory Requirements related to each of the fundamental principles set out in the Responsible Sourcing Policy.[15] For example, with respect to workers being paid fair wages, suppliers are required to ensure that all workers are provided total compensation packages that include wages, overtime pay, benefits and paid leave which either satisfies or exceeds the legal minimum standards or industry standards, whichever is the highest. Guidelines and tips are provided for the implementation of a comprehensive and robust process so suppliers can meet the Mandatory Requirements and move up the ‘continuous ladder of improvement’ and advance to good practice and then finally achieve and maintain best practice with respect to each of the fundamental principles.

Where there are breaches of the Responsible Sourcing Policy, they must be reported to Unilever who will investigate and discuss its findings with the relevant supplier. If remediation is required, the supplier is required to devise and inform Unilever of their Corrective Action Plans (CAPs) and implementation plans and timeline to resolve the breach.

Unilever’s Procurement Code Committee evaluates and makes recommendations where suppliers are not willing to comply or move up the continuous improvement ladder, and it reviews all key incidents raised. Continual non-conformances with no remediation plans result in an escalation to the Global Procurement Code Committee for a decision on terminating the business relationship.[16] No information is publicly available regarding Unilever’s Global Procurement Code Committee.

Engaging with new and existing suppliers[17]

Unilever’s audit approach to evaluating suppliers is depicted below.

Source: Unilever 2015 Human Rights Report, p 18

Unilever uses a risk-based approach to evaluate prospective and existing suppliers. Suppliers are required to complete a self-declaration regarding their compliance to the Mandatory Requirements of Unilever’s Responsible Sourcing Policy. Suppliers are then segmented based on a risk assessment using externally available indices of business and human rights risks from expert sources. Country risk is one element of the risk assessment (see below for the outcome of Unilever’s 2018 country risk assessment).

Source: Unilever’s Supply Chain, p 17.

Suppliers in the highest risk segment are required to undergo an independent third-party audit. Raw material or finished goods suppliers are required to undergo an on-site audit, while service suppliers need to undergo a remote desktop audit.

During the course of an on-site audit, all non-conformances are recorded to indicate where a supplier’s site does not align with the Responsible Sourcing Policy Mandatory Requirements. A supplier must provide a time-bound CAP to address and remediate non-conformances, and the auditor must confirm the remediation has effectively addressed the non-conformance in a follow-up audit within a 90-day period for the supplier to be Responsible Sourcing Policy compliant.

Audit frequency can be every 12, 24, or 36 months, and is determined by the number and type of non-conformances found in the previous audit. CAPs must be implemented to address all non-conformances and re verified in a follow-up audit to confirm and verify that the identified issues have been effectively remediated.[18] As at May 2018, of the 44,290 suppliers risk assessed to date, 11,287 were classified as high risk of which 1,667 were identified with issues in the previous three years of which 1,175 had verified CAPs.[19]

More serious non-conformances are classified as ‘Critical Incidents’, with the most severe of these termed ‘Key Incidents’. The presence of Critical Incidents automatically means that the supplier must have a new audit after 12 months. On top of the requirements for Critical Incidents, the auditor must raise a Key Incident to Unilever within a 24-hour period. Key Incidents are escalated to either Director or Vice President level within Unilever to ensure appropriate attention is given. Within seven days a CAP to remedy the issue must be provided by the supplier.

Stakeholder Engagement Channels 

Unilever engages with its stakeholders in conducting risk assessments. Stakeholder consultation, dialogue and action are considered to be a critical part of its risk assessment process and have been said to deliver ‘enormous value’, given the localised and culturally specific nature of the issues faced. Unilever has identified its stakeholders to include its employees, trade unions, customers, NGOs, communities, suppliers, workers, business partners, advisory boards (such as the Unilever Sustainable Living Plan Council), governments, intergovernmental organisations and civil society organisations.[20] Unilever’s Advocacy Team play a lead role in engaging with its external stakeholders, which is supported by its External Affairs Team.[21] Unilever also engages with various organisations including the World Business Council for Sustainable Development, Consumer Goods Forum, United Nations Global Compact and the World Economic Forum.

Unilever also captures and addresses complaints through its grievance mechanisms – it notes that ‘Grievance mechanisms play a critical role in opening channels for dialogue, problem solving, investigation and, when required, providing remedy.’[22] With respect to Unilever’s supply chain, one of the fundamental principles of the Responsible Sourcing Policy requires all workers to have access to fair procedures and remedies. Accordingly, suppliers are required to provide grievance mechanisms to their workers. Unilever monitors the number of complaints received from workers by suppliers each year in order to monitor its salient issues and address root causes so that similar grievances will not be raised in the future.[23] Additionally, Unilever also provides a hotline that anyone can access to report on responsible sourcing issues. It has also developed a grievance procedure for workers in its palm oil supply chain. A summary of the complaints raised under this procedure can be found here.

Identified risks 

Through its risk identification and assessment processes, Unilever has identified eight salient human rights issues within its business, which are depicted in the image below.

Source: Unilever Human Rights Report 2015, p 26.

During the course of 2017, Unilever identified the following non-conformances in relation to the salient issues:

Source: Human Rights 2018 Supplier Audit Update, p 10.

Integrating and Acting

Unilever recognises that it must take steps to identify and address any actual or potential adverse impacts with which it may be involved whether directly or indirectly through its own activities or its business relationships. It seeks to manage the risks identified in the processes discussed above by ‘integrating the responses … into [its] policies and internal systems, acting on the findings, tracking [its] actions, and communicating with [its] stakeholders about how [it] address impacts.’[24] Remediation is perceived as important as addressing human rights impacts.

With respect to each of the eight salient issues set out above, Unilever has taken specific actions and implemented initiatives to prevent and mitigate those issues from arising in its supply chains. For example, with respect to forced labour Unilever has, inter alia:[25]

• Developed best practice guidelines on the use of migrant labour focusing on the recruitment process, contractual terms and the payment of wages and benefits. These guidelines are not publicly available.
• Incorporated human trafficking explicitly into its Human Rights Policy Statement, Code of Business Principles and its Respect, Dignity and Fair Treatment Code Policy, and provided associated training to its employees globally.I
• Incorporated trafficking guidelines into its Responsible Sourcing Policy and Responsible Business Partner Policy.
• Published a UK Modern Slavery Statement in 2017, 2018 and 2019.
• Became a founding member of the Leadership Group for Responsible Recruitment, which promotes responsible recruitment practices by business.
• Provided training to suppliers in Turkey, Dubai, India, Bangkok and Malaysia on eradicating forced labour and the responsible management of migrant labour.

Tracking

Unilever recognises that ‘the ability to track and monitor issues is a vital part of measuring progress in remediation and addressing grievances’.[26] The Unilever Board is responsible for compliance, monitoring and reporting and day-to-day responsibility lies with senior management. Unilever’s Corporate Audit Team and external auditors undertake checks on this process. [27]

With respect to tracking its supply chain, Unilever has an ‘Integrated Social Sustainability Dashboard’ (Dashboard), which sets out the ‘number of non-conformances for each fundamental principle of the RSP’.[28] It uses the information available through the Dashboard to identify salient hotspot issues ‘allowing use to prioritise, build guidance produce webinars, and support regions where the need is greatest’.[29] Unilever’s Procurement Team also monitors supplier compliance levels and identifies when intervention is required. It works with suppliers to ensure effective remediation. Unilever also tracks and verifies that CAPs are implemented within the agreed timelines. When very serious Key Incidents occur, Unilever more directly and actively participates in developing CAPs and following up on their implementation.[30]

Communicating

Unilever claims that it engages in dialogue with its employees, workers and external stakeholders who are or could potentially be affected by its actions.[31] It particularly focuses on individuals or groups who ‘may be at greater risk of negative human rights impacts due to their vulnerability or marginalisation’.[32]

Unilever primarily uses its Human Rights Report 2015 and Human Rights Progress Reports to communicate its process of identifying and assessing human rights risks and impacts, including its salient human rights issues and the actions taken to prevent and mitigate those issues, as well as integrating, acting and tracking those issues. Unilever also utilises its annual Modern Slavery Statements to communicate with stakeholders. Aside from these reports and statements, Unilever has not clearly stated what other means it utilises to communicate its human rights impacts, policies and approaches. A review of its website contains a webpage detailing its engagement with stakeholders, but fails to recognise exactly how this engagement is carried out.

With respect to grievances raised through the Palm Oil grievance procedure, Unilever publishes a Grievance Tracker online setting out a summary of each grievance raised, the link to Unilever and the latest actions taken to address the allegations. It also publishes responses in relation to specific claims – see for example here and here.

The Gaps Between Theory and Practice

Unilever has acknowledged that the challenges faced by the business community with regard to its responsibility to respect human rights are ‘enormous’, particularly given the scale of their operations and supply chain. It states that ‘the risk of systemic human rights abuses exists across our value chain and the value chains … This is a reality we must confront and work together to resolve.’ As a result it has claimed to go beyond respecting human rights to actively promoting them. This approach has positioned it publicly as a leader and a model from which other businesses can draw inspiration.[33]

What is clear from a review of Unilever’ human rights approach is that it recognises its responsibility to respect human rights and has sought to take steps to fulfil this obligation along its entire value chain. While Unilever’s human rights efforts started to gain some momentum in 2010 when it launched its Sustainable Living Plan and began evaluating suppliers, it accelerated its efforts in 2014 by introducing a Human Rights Policy Statement, formalising its commitment to promoting human rights across its operations and supply chains, as well as through designing a five-year human rights strategy.[34] In 2015, it became the first company to produce a standalone human rights report.

Nonetheless, despite Unilever’s extensive human rights work over the past years, including the strengthening of its HRDD processes in its supply chains, it has drawn and continues to draw criticism in relation to the human rights abuses that still exist within its value chain. Key human rights issues that have been placed in the spotlight in various jurisdictions are discussed below. Information regarding alleged human rights violations committed by Unilever pre-dating the UNGPs has been included in the sub-sections below to the extent that such violations have been found to still be present following Unilever’s actions to increase its efforts to respect human rights in 2014.

Vietnam

In 2013, Oxfam (together with Unilever) published a report in which it assessed the labour standards in Unilever’s operations and supply chain in Vietnam and developed measures to guide Unilever (and other companies) to fulfil their social responsibilities. It found that despite Unilever’s commitment to human rights, its tools and processes for due diligence and remediation via grievance mechanisms needed to be strengthened. It stated that Unilever had ‘not been aware that some of its practices were associated with adverse impacts for workers, including wages that were legal but low, excessive working hours, and high levels of contract labour.‘[35] Recommendations were made by Oxfam to Unilever, including policy changes, strengthening its due diligence processes and better aligning business processes with its policies. Unilever made a range of commitments in response to the recommendations.

A progress report was published in 2016, which found that Unilever’s ‘overall commitment to respecting human and labour rights has been strengthened as a result of effective leadership across the business’. Nonetheless, it identified some ‘critical implementation challenges’ that need to be addressed in order to ‘[translate] the company’s policy commitments into practice and achieve positive outcomes for … workers’. Specific issues that were identified were:

1. There was an ‘unresolved tension’ between the commercial and labour standards imposed on suppliers. Some suppliers did not see the business case for their own businesses in improving their labour standards.
2. Despite Unilever’s efforts to ensure fair compensation for workers, there was a lack of evidence to show that worker wages had increased beyond the legal minimum level in Vietnam.

Additionally, Oxfam highlighted that multinational more generally need to address the root causes of adverse human rights impacts in their supply chains in order for ‘good labour standards to become universal operating conditions.’ Oxfam made further recommendations to improve the situation for workers in Vietnam.

India

In the 2011 SOMO & ICN Report, SOMO also reported on Indian tea plantations that supply to Unilever. Issues identified included wages being paid with too little benefits, workers being discriminated against in relation to promotions and benefits, the casualization of labour as well as violations of the freedom of association. In 2016, ICN released a follow up report on the situation in India. It found that there had been some improvements in the ‘payment of minimum wages, setting up procedures for safe handling of chemicals and the provision of basic medical care and educational facilities for all temporary and permanent workers’. However, there are still ‘many serious non-compliances’ relating to ‘unequal benefits for casual workers, overtime wages and working hours, advance payments, chemical handling practices and worker representation.’ Unilever responded by stating that it was in dialogue with its suppliers in relation to the issues raised in the follow up report.

Further, in 2015 a BBC investigation found ‘dangerous and degrading living and working conditions’ in tea estates that supply to some of Unilever’s brands (Lipton and PG Tips). Unilever stated that it regarded the issues raised in the investigation as ‘serious’ and had made progress to rectify these issues through ‘working with [its] suppliers to achieve responsible and sustainable practices’.

Turkey

In 2014, an external organisation engaged by Unilever carried out an independent assessment of its tea supply chain in Turkey. The assessment found, inter alia, that workers worked excessive hours during the harvest, various health and safety issues (e.g. lack of protective equipment) and migrant worker accommodation did not meet the required standards in some instances. As a result, Unilever decided to remediate the identified issues at the individual site level and also work with external multi-stakeholder groups to address more systemic challenges. It also started a capacity building initiatives in Turkey that focuses on human rights and held training in 2016 focusing on the key non-compliances found. 

Indonesia

In 2016, Amnesty International published a report in relation to labour exploitation on plantations in Indonesia that provide palm oil to Wilmar, which then supplied to Unilever.[36] It was found that serious human rights violations were occurring on the plantations of Wilmar and its suppliers, including ‘forced labour and child labour, gender discrimination, as well as exploitative and dangerous working practices that put the health of workers at risk’, which resulted from systematic business practices (e.g. low wages and the casualisation of labour). Unilever issued a detailed response to a letter from Amnesty International in relation to the report recognising that ‘more attention needs to be paid to social issues at palm oil plantations and that current processes and policies need to be improved to ensure they address issues effectively and create more transparency.’ It also noted that it was in contact with Wilmar regarding the issues raised and committed to continuing to engage to take steps to ‘close the gaps identified’. Unilever also issues a public statement once the report was released, committing to investigating the grievances raised in the report and addressing them. Unilever has continued to engage with Wilmar and Amnesty International on these issues – see for example here (2016), here (2017) and here (2018).

Conclusion 

What is clear from these examples of human rights violations in Unilever’s supply chains is that despite its extensive HRDD process that it seeks to roll out across its value chain, in practice there remain weaknesses and blind spots in this process. For example, Unilever does not have a third party grievance mechanism allowing workers to raise complaints directly to the company (except in relation to palm oil). Instead workers must raise their grievances through supplier provided mechanisms, which can discourage the communication of human rights issues. Also, Unilever assesses prospective suppliers through the use of a self-declaration, which is extremely problematic as it relies on potential culprits to assess their own compliance with the Mandatory Requirements for doing business with Unilever, in some cases without verification by Unilever or an independent third party. Weaknesses such as these make it evident that Unilever has far to go on its journey to respecting human rights within its supply chains, despite being a ‘leader’ in implementing HRDD globally. Unilever needs to look beyond remedying human rights abuses as they are alleged and reported. It must also examine the systemic failings in its HRDD process that result in these human rights risks not being identified and therefore prevented or mitigated.

[1] Unless otherwise statement, the information in this section has been obtained from the Unilever 2018 Annual Report and the Unilever Human Rights Report 2015.

[2] Unilever Modern Slavery & Human Trafficking Statement 2019, p 2.

[3] Unilever Annual Report 2018, p 9.

[4] Unilever Human Rights Policy Statement, p 4.

[5] Ibid, p 1; Unilever, Advancing Human Rights in our Own Operations; Unilever Human Rights Report 2015, p 1.

[6] Unilever Human Rights Policy Statement.

[7] Business and Human Rights Resource Centre Action Platform, Unilever.

[8] Unilever Human Rights Report 2015, p 26.

[9] Unilever Human Rights Progress Report 2017, p 15.

[10] Unilever Human Rights Report 2015, pp 26, 58.

[11] Unilever Human Rights Progress Report 2017, p 71.

[12] Ibid.

[13] Ibid, p 70.

[14] Unilever Human Rights Policy Statement, p 2.

[15] Unilever Modern Slavery & Human Trafficking Statement 2019, p 4.

[16] Unilever Human Rights Report 2015, p 51.

[17] Unilever Human Rights Progress Report 2017, pp 18-19.

[18] Unilever’s Supply Chain, p 17.

[19] Ibid.

[20] Unilever Human Rights Report 2015, pp 22-23; Unilever, Engaging with Stakeholders.

[21] Business and Human Rights Resource Centre Action Platform, Unilever.

[22] Ibid.

[23] Unilever Human Rights Report 2015, p 57.

[24] Unilever Human Rights Policy Statement, p 2.

[25] Unilever Human Rights Report 2015, p 32; Unilever, Sharing Best Practice in Fighting Forced Labour; The Consumer Goods Forum, Business Actions Against Forced Labour, p 36; Unilever Human Rights Progress Report 2017, p 32.

[26] Unilever Human Rights Progress Report 2017, p 72.

[27] Unilever Human Rights Report 2015, p 47.

[28] Unilever Human Rights Progress Report 2017, p 72.

[29] Ibid.

[30] Ibid.

[31] Unilever Human Rights Policy Statement, p 3.

[32] Ibid.

[33] See for example: Corporate Human Rights Benchmark 2017 and 2018; and Know the Chain 2018.

[34] Unilever Human Rights Report 2015, p 3.

[35] Oxfam, Business and Human Rights: An Oxfam Perspective on the UN Guiding Principles, p 7.

[36] While Unilever confirmed that the purchase palm oil from Wilmar, they did not provide details on the refineries they source from. Nonetheless, Amnesty International found it ‘highly likely’ that Unilever sources palm oil from one of the 12 Indonesian refineries it investigated (whether directly or indirectly).