P&O Ferries, Business and Human Rights

The P&O announcement raises big questions about the effectiveness of a wide variety of so-called soft law instruments to ensure social responsibility

Commentary icon24 Mar 2022|Comment

Keith Ewing

Professor of Public Law, King’s College London

In the second of his three part discussion on the P&O crisis, IER President Keith Ewing looks at the relationship between busines, ethics and human rights.

I

Today the House of Commons Select Committee on Business, Energy, Innovation and Skills begins an inquiry into the P&O Ferries scandal, jointly with the Select Committee on Transport.   This should provide an opportunity for corporate executives to account publicly for their decisions and their alleged failure to comply with various legal standards, most notably the failure to inform and consult the trade unions of their decision to dismiss workers for reasons of redundancy.

But it will also provide an opportunity for the Committees to hear from both the government and the company about other matters, not least the implementation and application of the human rights principles by which companies are supposed to be bound.  The P&O announcement raises big questions once again about the effectiveness of a wide variety of so-called soft law instruments as a means of ensuring that global corporations behave in a socially responsible way.

II

Pre-eminent amongst these instruments are the UN Guiding Principles on Business and Human Rights (UNGPs) approved in 2011 (the so-called Ruggie principles after their author).  These seek to impose obligations on governments to protect against human rights abuses; on corporations to respect internationally recognised human rights; and on States to ‘ensure as part of their duty to protect against business-related human rights abuse’ that those affected have access to an effective remedy.

The principles require national governments to develop an action plan to promote their implementation, which the British government proudly claims to be the first to have done.  This can be found on the BEIS website, with the government’s implementation document claiming implausibly that ‘the promotion of business, and the respect for human rights, go hand in hand’.  Not only that:  ‘The ‘golden thread’ of safeguards in society that are good for human rights – democratic freedoms, the rule of law, good governance, transparency, property rights and civil society – also provide fertile conditions for private sector led growth’.

The question that then arises is what is meant by human rights for this purpose?  To which human rights do these obligations apply?  The position could not be clearer or more expansive.  According to the UNGPs, they apply to the ‘international bill of rights’ (meaning the UN Declaration of Human Rights, as well as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights), as well as the ILO Declaration on Fundamental Principles at Work.   It is not necessary to go into these in great detail here; they are easily accessible on the web.

So what are the obligations on the part of the government to comply with principles which have now been endorsed by the G7 as part of the currency of globalisation?   First they have a duty to ‘prevent, investigate, punish and redress’ human rights abuses.  Secondly, they should set out ‘an expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations’.   And thirdly, they should enforce laws that are aimed at or have the effect of requiring business enterprises to respect human rights’.  Special obligations arise specifically in relation to those businesses which are supported by the State or have contracts with the State.

One other obligation worth highlighting in light of press reports that the Department of Transport was notified by P&O in advance of the announcement, yet did nothing to stop it.  This is the principle that states should ensure that government departments that shape business practices are made aware of and observe the State’s human rights obligations when fulfilling their mandates.  This means the government should provide relevant information, training and support, raising questions about the training and support of the Department of Transport officials, whose responsibility when circulating details of P&O’s decision was arguably to raise a red flag not flash a green light.

III

So far as the company itself is concerned, the Guiding Principles impose multiple human rights obligations.  They must avoid causing adverse human rights impacts in their activities, and address such impacts when they occur.  In order to do so, they must take a number of prescribed steps, the first of which is to have in place policies and processes, whereby they (i) commit to meet their responsibility to respect human rights, (ii) undertake due diligence to prevent and account for human rights impacts; and (iii) have processes to enable the remediation of any adverse human rights impacts they cause.

It is reported in the press that P&O’s parent company is the Dubai based multinational DP World, which does in fact post a human rights statement, by which it ‘respects and supports the human rights’ of its employees, its extended supply chain and the broader community around it.   According to the policy, the company is guided by the UN Declaration of Human Rights, the ILO Declaration on Fundamental Principles and Rights at Work, the UN Guiding Principles referred to above, as well as others.   In relation to labour rights, the Statement specifically addresses freedom of association, to the extent that it refers to collective bargaining, the company committing to ‘the laws and labour practices of each country’.

The latter presumably would include the right of recognized trade unions in Great Britain to be informed and consulted about collective redundancies, as required by TULRCA 1992, s 188.   There is also a commitment to responsible procurement with ‘rigorous selection criteria for our suppliers’ who are expected ‘to respect basic human rights’.    This may be relevant in the case of the wages paid to agency workers who may be recruited to work on the vessels.  The ICESCR includes the right of everyone to just and favourable conditions of work, including remuneration which provides as a minimum fair wages and a decent living for workers and their families.

But apart from the duty to have a human rights policy, there is also a duty under the UNGPs to ensure that the policy is effective, though DP World has in any event made clear that it is guided by these principles.   This means that it should be approved at the most senior level of the company, and stipulate the company’s human rights expectations of its personnel, business partners and other parties directly linked to its products or services.   Beyond that, GP Global is required to ‘carry out human rights due diligence’ to ‘identify, prevent, mitigate, and account for’ how they address adverse human rights impacts, whether through their own activities directly or as a result of their business relationships.

The Guidelines refer to an expectation of there being a human rights process conducted by companies, which draws on external experts, and involves ‘meaningful consultation with potentially affected groups’.   In addition to a number of other obligations, businesses are required to cooperate in the remediation of any adverse human rights impacts, the guiding principles recognizing that ‘even with the best policies and practices, a business enterprise may cause or contribute’ to an adverse impact ‘that it has not foreseen or been able to prevent’.   There are obviously a number of questions here which P&O Ferries and its parent company could be invited to address in light of the adverse publicity that their conduct has attracted.

IV

But in the meantime, the UNGPs are not the whole of it.  Large companies are also governed by the OECD Guidelines for Multinational Enterprises, which cover a wide range of issues.  They include a labour chapter which covers much of the same ground as the ILO Declaration on Fundamental Principles and Rights at Work (obligations in respect of forced labour, child labour, discrimination, and freedom of association).  The ILO Declaration is referred to in the Commentary to the text of the OECD Guidelines, though the nevertheless go further than the ILO Declaration.

First, so far as collective bargaining is concerned, the OECD Guidelines require employers to ‘provide information to workers’ representatives which is needed for meaningful negotiations on conditions of employment’.   The Guidelines also require the employer to ‘provide information to workers and their representatives which enables them to obtain a true and fair view of the performance of the entity or, where appropriate, the enterprise as a whole’.  Again, this is something which P&O and their parent company will want to address in order to allay concerns about the circumstances surrounding their dismissal and replacement of 800 employees.

More specifically, however, the OECD Guidelines address the question of mass dismissals for reasons of redundancy, providing that enterprises ‘should’ when

considering changes in their operations which would have major employment effects, in particular in the case of the closure of an entity involving collective lay-offs or dismissals, provide reasonable notice of such changes to representatives of the workers in their employment and their organisations, and, where appropriate, to the relevant governmental authorities, and co-operate with the worker representatives and appropriate governmental authorities so as to mitigate to the maximum extent practicable adverse effects.

It is also indicated that ‘it would be appropriate if management were able to give such notice prior to the final decision being taken’.

According to the commentary accompanying the guidelines this measure is drawn from obligations in the national laws of OECD member states (presumably including British law), while the guidelines themselves make clear that the obligation on companies is set within a framework of ‘applicable international standards’.  The consequence of that for redundancy dismissals is that it draws attention to ILO Convention 182 (the Termination of Employment Convention) which provides

When the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, the employer shall:

(a) provide the workers’ representatives concerned in good time with relevant information including the reasons for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out;

(b) give, in accordance with national law and practice, the workers’ representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimise the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.

There is thus no shortage of international standards which make clear that companies are required to inform and consult, in addition to any obligation arising under domestic law.   The point is reinforced still further by the ILO Declaration on Multinational Enterprises to which the OECD Guidelines also refer, the former making clear that

In considering changes in operations (including those resulting from mergers, takeovers or transfers of production) which would have major employment effects, multinational enterprises should provide reasonable notice of such changes to the appropriate government authorities and representatives of the workers in their employment and their organizations so that the implications may be examined jointly in order to mitigate adverse effects to the greatest possible extent. This is particularly important in the case of the closure of an entity involving collective lay-offs or dismissals.

Notably the ILO Tripartite Declaration also provides that ‘wages, benefits and conditions of work offered by multinational enterprises across their operations should be not less favourable to the workers than those offered by comparable employers in the host country’.

V

The UN Guiding Principles on Business and Human Rights, the OECD Guidelines on Multinational Enterprises, and the ILO Tripartite Declaration on Multinational Enterprises thus include provisions highly relevant to both the mass dismissal of employees and their replacement by agency workers under a service contract.    The obvious question of course is what human rights are in the frame here, to which the answer might focus on those relating to collective bargaining associated rights (in relation to those dismissed), and minimum wage obligations (in relation to the replacement workers).  This is in addition to the express obligations in the OECD Guidelines and the ILO Tripartite Declaration (specifically requiring redundancy consultation).

There are thus a number of questions for the government, the companies involved, and the trade unions.   For the government,

  • Has it done enough to ‘prevent, investigate, punish and redress’ human rights abuses as required by the UNGPs?
  • Has it made clear to business enterprises their expectation that businesses should comply with human rights obligations, and if so how has this been done?
  • Has it done enough to ‘enforce laws that are aimed at or have the effect of requiring business enterprises to respect human rights’?
  • What information, training and support has been given within government departments to raise awareness of the government’s human rights obligations in this field?
  • What procedures are in place to enable officials to raise concerns about adverse human rights impacts of businesses, and what is the process for raising these concerns?

It is thus not to be overlooked that the primary responsibility for ensuring human rights obligations are complied with lies with the government.  But there are questions also for the companies in this case,

  • Are they satisfied that the P&O Ferries decision is compatible with DP World’s Human Rights Statement? If so, why?
  • What steps were taken by the companies to test the proposal to dismiss with the company’s human rights obligations, before the decision was made? Can this be substantiated by evidence?
  • What steps were taken by the companies to ensure that the requirement of staff to leave their vessels was compatible with the human rights of the individuals in question?
  • What diligence was undertaken by the companies in relation to the suppliers of agency labour to assess whether wage levels were compatible with human rights requirements?
  • Was the failure to consult trade unions before the decisions were announced compatible with the OECD Guidelines and the ILO Tripartite Declaration?

There are different questions of course for the trade unions, which are more basic:  how can these obligations be enforced?   There is unlikely to be a human rights remedy, unless some of the foregoing can be shoe-horned into the Human Rights Act 1998, as violating Convention rights.  Here it is not the obvious labour law issue that may be the most fruitful line of attack, but a collateral issue that no one has expected, perhaps around the European Convention on Human Rights, article 8 for claims from workers about the manner of their removal from ships.  There is also a limited opportunity to bring complaints in extra-legal forums, though the OECD Guidelines do provide an opportunity for complaints to be made to a National Contact Point, a procedure which has been helpful in the past.

Ultimately, however, this is a political matter, and it is in the political arena that the battle will have to be fought.  The question for trade unions is how effectively they can weaponise the instruments considered above to pressurise the government and the company, though the opportunities will pass very soon.  In terms of active, persistent and global campaigning against corporations that are believed to undermine human rights obligations owed to workers, trade unions and others, British trade unions have much to learn from their counterparts in the United States and Canada, which are tied up in legal knots just as tightly as are British trade unions, but which have adapted to operate outside traditional labour law boundaries.

If not now, then when is it time for new strategic thinking and a new strategic response on the part of the British labour movement?

This article has been updated and was originally published in the Morning Star on the 24th March.

This is the second in a series of articles by Professor Keith Ewing on the P&O crisis. You can read part one here and part three here.

Keith Ewing

Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is also the President of the Institute of Employment Rights