Should national or public authorities and/or regulators be informed?
Consider whether to inform any public authorities of allegations regarding potential human rights violations. Generally, such disclosure can wait until the facts have been properly determined and/or until a proper investigation has been carried out.
There are some situations where immediate disclosure is necessary:
- if there are allegations of ongoing violent disorder at your organisation’s facilities, or the use of force by employees. In these cases, the incident management (IM) team must decide whether it is necessary to inform local law enforcement immediately
- if the potential violation concerns a serious offence against the person, committed by your officials, you may wish to demonstrate that the official was not acting in his professional capacity by immediately informing local law enforcement
- when deciding which other public authorities may be engaged, particularly where there is no element of violence, consider bodies in both the host state of the investment and the home state of your company
With so many different types of potential human rights violations, it is impossible to provide a comprehensive list of relevant public authorities. However, the following should be considered:
- OECD National Contact Point
- labour authorities
- money laundering agencies
- anti-discrimination agencies
- human rights agencies
- industry regulators
- law enforcement agencies
- foreign ministry or the ministry responsible for overseas trade
- environmental authorities in the host state and in neighbouring states
Before contacting any public body, consider the benefits of self-reporting – from a public relations perspective and in terms of the potential for leniency/reduced penalty. In some jurisdictions, the courts may not honour assurances of leniency by administrative bodies and regulators. Local guidance may need to be sought to mitigate this risk.
Regulators often communicate openly with their counterparts in other countries. In deciding whether to make a report to a public body, consider the consequences of that information being shared with authorities in other states.
You should also consider whether a third party (eg a bank or other company engaged in the potential violation) will make a report. If so, pre-emptive disclosure may be advisable.
Human rights incidents, and the company’s response, may also need to be recorded and reported in any non-financial reporting that the company is obliged to make, for example, by the Companies Act. A new EU Directive will also require mandatory CSR reporting by particular businesses within the EU.
In addition, companies should consider whether its response to any human/labour rights violation will require it to update any annual report it makes under the UK Modern Slavery Act confirming the steps taken to ensure that slavery and human trafficking are not taking place in any of its supply chains or in any part of its own business.
