How can we improve access to legal support for victims of human rights violation in the fashion industry?

By Johanna Ramaer

From unsafe factory conditions and toxic chemical exposure to sexual harassment, workers can face many human rights abuses in the workplace. The United Nations Guiding Principles on Business and Human Rights (UNGPs) therefore introduce three main pillars on which action needs to be taken to prevent, address and remedy the abuses committed in business operations. One of these pillars focuses on the victim’s right to access an effective remedy where their human rights are harmed. Guaranteeing this right has become increasingly relevant as complex corporate structures and supply chains have made it difficult to attribute responsibility to parent companies for Human Rights violations in their global operations. Subsequently, corporations operate across borders with few or no obstacles.

This environment, in which the fashion industry also operates, has severe consequences for victims of human rights abuses. It is nigh on impossible for victims to seek judicial justice; while the cases that do make it to court are rarely ruled in favour of the victim. A 2015 comparative study revealed that approximately 40 foreign direct liability cases were brought before European courts between 1990 and 2015. Out of these cases only three resulted in a final judicial decision finding the defendant company liable. These low numbers are the result of numerous barriers victims face when trying to seek justice. Most of these barriers stem from a lack of corporate liability. Such a lack of attribution is problematic since it does not stimulate corporations to take more responsibility for the human rights abuses within their supply chains.

One big barrier is that it’s a victim’s responsibility to prove that the corporation was responsible for the damages done. Claims of human rights abuses often require the claimants to show first, the existence of a duty of care owed to them by the defendant company; second, that such a duty of care was breached by the defendant; and third that the breach of duty caused the claimants a damage. Subsequently, victims have to demonstrate a lot before a corporation is found liable for human rights abuse. Gathering all information necessary to demonstrate this takes both a lot of time and money, which many victims do not have. Moreover, legally it is, in fact, very difficult to establish a corporation’s duty of care.

This has to do with a legal concept called the corporate veil. This concept separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company’s obligations. It is essentially a device designed to protect shareholders so as to encourage entrepreneurial risk-taking and innovation. However, it has become a huge obstacle to transnational human rights claimants seeking redress from corporate parents for the actions of their subsidiaries. The corporate veil means that corporations are, in principle, not responsible for the actions of their subsidiaries. This poses a significant hurdle because most human rights abuses are not directly committed by a corporation itself. For example, a garment worker is typically employed by the factory itself rather than the retail company. Subsequently, legally speaking, it is the factory that is responsible for the safety of the worker and not the retail company. However, in some cases it is possible to lift the corporate veil, but this can be a very challenging process and is often very difficult to prove for victims. Thus, this legal principle forms a big barrier to establishing corporate liability for abuses committed by corporations’ subsidiaries. 

A solution to the difficulty of establishing a corporation’s liability would be to reverse the burden of proof. That is, make it a corporation’s responsibility to prevent human rights abuses from happening in the first place. The UK Bribery Act is an example of such a reversed burden of proof. It requires a commercial organisation to prevent payments of bribes by employees or others working on its behalf. Such a reversal of the burden of proof creates a new, strict liability offence of failure by a commercial organization. Thus, a reversed burden of proof eliminates a barrier as claimants do not have to put so much time and money in establishing a corporation’s liability.

A lack of access to an effective remedy in the case of human rights abuses is again a story of a lack of corporate liability. Therefore, the UK government should include this reversal of the burden of proof in a general legislation that imposes a duty on all companies to prevent human rights from happening. Bringing forward such legislation would make it much easier for victims to seek justice. To read more about what such a general legislation should entail, read our policy piece on this topic here.