This article was co-written by Mukul Chawla (Partner), Catherine Turner (Senior Associate) and Luke Hardingham (Associate).
Modern slavery is not going away. COVID-19 has shone light on how employers treat their workforce. The inevitable glut of labour resulting from increased redundancy rates renders those at the murky end of long supply chains more vulnerable to human exploitation than ever before.
Simultaneously, institutions of every kind are facing unprecedented scrutiny to demonstrate not only compliance with the highest ethical business standards but also active support for the same. All this in the midst of a global economic downturn, during which the idea of cheap labour might previously have been regarded as a viable ingredient in the recipe for prosperity. The Australian Strategic Policy Institute’s March 2020 Policy Brief, which implicated the illegal mistreatment of Uyghur Muslims in China by 83 major brands, is just one example of today’s common realisation that few corporate household names are entirely unconnected to the facilitation of human exploitation.
Risks
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Laws and regulations holding commercial institutions liable for human rights breaches are steadily emerging from parliamentary bodies around the globe. With this expanding legislative framework grows the risk of breaches of commercial contracts, as common obligations to comply with ”all applicable laws”, “industry standards”, and even “all internal policies” become more meaningful. Though the risk is greater to those bound to anti-modern slavery provisions (now commonplace), there is no reason why courts would exclude human rights rights legislation from contractual clauses intended as a catch all.
Money laundering is also a genuine risk, as evidenced by the recent independent review of the Boohoo Group’s supply chain. Under UK legislation, even being knowingly concerned with someone deploying the proceeds of crime could constitute a criminal offence.
Corporates that become aware of modern slavery in their supply chains and fail to act may, therefore, be said to be benefitting from criminal property and be guilty of money laundering. The fact that the crime, wherever it takes place, is judged by the UK’s high standards renders the risk all the more serious. Add to this: (1) the incoming EU legislation on mandatory human rights reporting; (2) recent discussion concerning the likelihood of a new corporate offence of failure to prevent human exploitation; and (3) the promised reinforcements set to bolster corporate reporting obligations under the UK Modern Slavery Act, and the risk is real, ever-increasing, and merits diligent attention by every commercial organisation.
Transparency creates opportunity
That is not to mention the potential reputational damage at stake. Businesses are built on trust. Trust depends not only on excellence and reliability, but increasingly on transparency, from which healthy investment naturally follows. True transparency is only enabled by rigorous due diligence and positive action, wherever necessary.
If predictions that sustainable investment products will outnumber conventional funds by 2025 hold true, those who remain reluctant to be fully transparent because of failure to adequately address modern slavery risks could find themselves short of funds. By contrast, companies that are willing to tackle the issue head-on and embrace the opportunities it presents can seize the chance to emerge as market leaders in an increasingly visible area.
Why is this relevant for my institution?
The treatment of human beings as capital assets is estimated to pump a staggering USD 150 billion through global economies every year. No one who facilitates the flow of these funds will be shielded from the risks that accompany them. Be it an institutional investor owning a stake in a business profiting from forced labour, an insurer covering the risk of a fishing vessel harbouring the same, a retail bank offering cash management services to a trafficker, or a corporate benefiting from the supply of goods tarnished by modern slavery; commercial organisations cannot afford to be apathetic to the legal and reputational risks outlined above, nor can they conveniently excuse themselves from the problem.
Instead, those seeking to build resilience in 2021 and beyond will implement appropriate measures to safeguard against investing in, loaning capital to, or otherwise contracting with businesses dependent on an illegal activity that is becoming more and more regularly exposed.
What can institutions do to build resilience?
While workplaces should have appropriate safeguards in place to protect the rights of its workers and to ensure its subcontractors and commercial partners are compliant with minimum ethical standards, this may not, in and of itself, be enough. One practical step that institutions can take to build resilience in 2021 and beyond and ensure higher levels of transparency is to implement and publicise a robust whistleblowing policy and procedure.
If a worker becomes aware of or suspects wrongdoing, it is essential that they know to whom they can turn. To build trust and transparency, those thinking of blowing the whistle need to have confidence that their concerns will be taken seriously and investigated; that appropriate action will be taken if their concerns are founded and that they will not be victimised for blowing the whistle. An effective whistleblowing policy is a vital tool in an employer’s armoury not just to protect its workers, but to ensure that it is not inadvertently breaching human rights laws by contracting with those who are less compliant or less robust in their due diligence processes.
Conclusion
Corporates must act fast to avoid falling foul of the ever-increasing legislative, investor, and customer demand for higher levels of transparency and proactive human rights due diligence.
Peter Muchlinski, Emeritus Professor of International Commercial Law at SOAS, recently said:
The days when multinationals can claim that monitoring ethical behaviour by subcontractors is not possible, or that the cost of doing so is too great, are slowly coming to an end.
We would only venture to suggest that “slowly” be substituted with “quickly”.
This article was co-authored by Mukul Chawla QC, Luke Hardingham and Catherine Turner from Bryan Cave Leighton Paisner.
