Decision

Initial Assessment: a complaint against a UK-based Bank by an individual in the Democratic Republic of Congo

Published 22 November 2024

This statement was published on 22 November 2024 by the UK National Contact Point (UK ‘NCP’) for the OECD Guidelines for Multinational Enterprises.

The UK NCP’s Initial Assessment process is a decision on whether the issues raised in a complaint merit further examination. It does not determine whether the Respondents have acted consistently with the OECD Guidelines for Multinational Enterprises (‘the Guidelines’).

The Guideline’s Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises^{[footnote 1]} states that generally issues are dealt with by the NCP of the country in which the issues have arisen. When an issue arises in a non-adhering country (in this instance, DRC) the NCP of the country where the multinational enterprise is based can deal with the complaint. In this instance the UK NCP will deal with this complaint, as the Respondent is a UK registered company.

1. Summary of the UK NCP decision

The UK NCP is rejecting this complaint as it finds that a further examination would not further the effectiveness of the Guidelines. The UK NCP does not consider that the claims made are material and substantiated.

The complaint has been brought to the UK NCP against a London-based bank (‘the Respondent’) by an individual in the DRC (‘the Complainant’). The complaint concerns the Respondent’s alleged breach of the Guidelines in regard to its business relationship with a commercial bank based in the DRC (‘the Bank’), in which the Complainant was a former employee. The complaint cited provisions under the following Chapters:

• Chapter I (Concepts and Principles) Paragraph 1
• Chapter II (General Policies) Paragraphs 1, 2, 6, 10
• Chapter III (Disclosure) Paragraph 1
• Chapter IV (Human Rights) Paragraphs 1, 2, 5, 6
• Chapter V (Employment and Industrial Relations) Paragraphs 1a, 1b, 2a, 2b, 3, 7, 8
• Chapter IX (Science and Technology) Paragraph 1
• Chapter XI (Taxation) Paragraphs 1, 2

The Complainant alleges the Respondent failed to conduct risk-based due diligence and prevent or mitigate adverse impacts regarding wrongful dismissal. The complaint further references additional allegations with regards to corporate and financial irregularities and lack of trade union representation.

The US NCP received the same complaint in 2021 regarding the same issues raised in this complaint. The 2021 complaint brought under the US NCP process was against a business that is part of the same business group as the Respondent in this complaint. Both complaints contain the same allegations and information. The US NCP rejected the complaint.

The UK NCP concludes that the concerns raised regarding wrongful dismissal are not covered by the Guidelines. The UK NCP further considers that allegations made under the other cited Chapters of the Guidelines are unclear and lacks supporting evidence. Therefore, this Initial Assessment will conclude the complaint process under the Guidelines.

The UK NCP applied the 2011 version of the Guidelines in its Initial Assessment as the issues raised in the complaint occurred before the revision of the Guidelines in 2023.

2. Substance of the complaint

The complaint was made by an individual who is a former employee of the Bank. The Complainant states to have been employed by the Bank from 18 November 2010. In May 2015, the Complainant was relocated with their family and belongings to a branch of the Bank in Tanganyika province, after being appointed to their new position as branch manager. The branch in Tanganyika is nearly 250 miles by air from the Complainant’s hometown and posting in the Bank’s branch in South Kivu Province. While the Complainant was in this new position, the branch grew from 10 to 29 employees.

On 21 August 2019, the Complainant was allegedly wrongfully dismissed for temporarily, and without authority, closing the sub-office in Tanganyika and moving employees to the main office in Tanganyika for the duration of 16 days during a network failure. The Complainant alleges that they were not informed of their dismissal by the appropriate managers in the Bank. The Complainant further alleges the Bank of failing to repatriate the Complainant and their family after termination. As a result, the Complainant alleges the Respondent and the Bank of breaching the provisions under Chapter IV of the Guidelines by failing to respect human rights, with particular regard to the right to work.

The Complainant makes allegations regarding a lack of a trade union delegation for workers of the Bank, alleging the Respondent and the Bank of breaching the provisions under Chapter V.

Additionally, the Complainant makes other allegations regarding Chapters I, Chapter III, Chapter IX, and Chapter XII. The Complainant raised concerns against the Bank regarding allegations of:

• breaches of the Organisation for the Harmonisation of Business Law in Africa (‘OHADA’) Uniform Act with regards to shareholder representation and share capital
• tax evasion and of failing to adopt tax risk management strategies
• failure to invest to contribute to the development of technological innovation to ensure the avoidance of the network failure

The Complainant alleges that the Respondent breached the provisions under Chapter II through its business relationship with the Bank. The Complainant alleges the Respondent of failing to conduct due diligence and prevent or mitigate adverse impacts of the Bank’s activities.

The UK NCP gave the Respondent an opportunity to respond to the complaint. Despite multiple attempts to contact the Respondent, the Respondent has not responded to any of the UK NCP’s efforts or to the complaint.

The UK NCP decided to continue with the Initial Assessment without the Respondent providing their initial comments on the complaint. Therefore, the Initial Assessment does not have any representation from the Respondent.

3. The UK NCP handling process

A timeline and details of the UK NCP handling process can be found in Annex 1.

The NCP is a voluntary process. The Respondent does not have to respond to the complaint or engage in the NCP process. However, once a complaint is accepted for Initial Assessment, the UK NCP will continue with the Initial Assessment whether or not the Respondent has provided a response.

In accordance with Paragraph 25 of the Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises^{[footnote 2]}, the UK NCP used the following criteria when conducting the Initial Assessment of the complaint:

• identity of the Complainant and its interest in the matter
• whether the issue is material and substantiated
• whether there seems to be a link between the enterprise’s activities and the issues raised
• how similar issues have been, or are being, treated in other domestic or international proceedings
• whether the consideration of the specific issue would contribute to the purpose and effectiveness of the Guidelines

4. Admissibility criteria

4.1 Identity of the Complainant and its interest in the matter

The guidance for NCPs on Initial Assessments as set out in the Guidelines states that the complainant(s) should have some interest in the matters they raise in their submissions^{[footnote 3]}”.

The Complainant is a former employee of the Bank which has a business relationship with the Respondent. The Complainant has provided sufficient evidence that they were formerly employed by the Bank, such as the Complainant’s dismissal letter and contract of employment. Therefore, the UK NCP is satisfied that the Complainant has an interest in the matters raised in the complaint and the activities of the Bank and the Respondent.

4.2 Whether the issue is material and substantiated

The Guide for NCPs on the Initial Assessment of Specific Instances states that “[t]his criterion refers to the significance of an issue raised in a submission as well as the extent to which it has been authenticated”. The Guidelines set out that an issue is material and substantiated^{[footnote 4]}.

The UK NCP does not consider the issues raised in the complaint to be material and substantiated because:

• the issues raised relating to wrongful dismissal in regards to individual employment disputes are not covered by the Guidelines
• issues relating to concerns regarding trade union is relevant to the Guidelines, however the Complainant has not provided enough evidence supporting these allegations
• other issues raised in the complaint are unclear to the UK NCP and, therefore, it is not evident how they relate to the Guidelines

Allegations relating to wrongful dismissal and failure to provide compensation after dismissal relate to issues regarding individual labour disputes. Individual labour disputes are not covered under the OECD Guidelines unless the Complainant demonstrates wider implications of the alleged activities conducted by a company. While the Complainant alleges that the Bank commonly treats employees in a similar manner, there is insufficient evidence that supports this allegation. The Complainant shared one media article which supports this allegation, however the article provides no evidence or sources to support the claim. Furthermore, the UK NCP does not consider that the allegations raised by the Complainant with regards to their wrongful dismissal relates to breaches under Chapter IV. The UK NCP does not consider that the alleged terms in which the Complainant was dismissed violates the human rights they have referenced in the complaint and no evidence is provided to explain this claim.

The Complainant alleges that the Respondent failed to adhere to provisions under Chapter V in relation to lack of trade union delegations of workers. These allegations include an inability for employees to form or join trade unions or representative organisations of their choice. However, the Complainant does not offer sufficient evidence supporting these allegations. The Complainant only offered one source for evidence however the source made no reference to the allegations made.

The Complainant’s allegations regarding Chapter I, Chapter III, Chapter IX, and Chapter XII are unclear and not supported by clear evidence.

Therefore, the UK NCP concludes that the issues raised in the complaint are not material and are unsubstantiated.

4.3 Whether there seems to be a link between the enterprise’s activities and the issues raised

Chapter II Paragraph 12 of the Guidelines states that “enterprises should seek to prevent and mitigate an adverse impact where they have not directly contributed to that impact, when the impact is nevertheless directly linked to their operations, products or services by a business relationship”. ‘Business relationship’ includes any business partner and entity in the supply chain. The UK NCP considers that there is a business relationship between the Respondent and the Bank as the Respondent is a correspondent bank of the Bank, demonstrating a business partnership.

The UK NCP determines that there is a link between the Respondent’s activities and the issues raised regarding the Respondent’s responsibility to due diligence as set out in Chapter II Paragraph 10 and leverage over the Bank’s activities as outlined in the Commentary on General Policies^{[footnote 5]}. However, the UK NCP considers the link between the Respondent’s activities and the issues raised is only established through their business relationship with the Bank. The UK NCP does not consider there to be a direct link between the Respondent’s activities and the issues raised in relation to other Paragraphs of the Guidelines.

4.4 Relevance of applicable law and procedures, including court rulings

The Complainant engaged in domestic legal remedies with the Bank in which their case is pending. However, the Respondent is not involved in these court proceedings.

4.5 How similar issues have been, or are being, treated in other domestic or international proceedings

The UK NCP cites complaints considered by the US NCP with respect to conclusions drawn regarding individual labour disputes, determining that “[i]ndividual labour disputes are not covered under the OECD Guidelines unless the Complainant demonstrates wider implications of the alleged activities conducted by a company”.

Additionally, the Complainant has submitted substantively the same complaint to the US NCP against a bank within the same business group as the Respondent. The complaint submitted to the US NCP relied on the same paragraphs and Chapters as the complaint submitted to the UK NCP, raising the same allegations and providing the same supporting evidence. The US NCP rejected this complaint, concluding that the OECD Guidelines do not normally cover an individual labour dispute such as that raised here. The UK NCP engaged with the US NCP on the complaint submitted to the UK NCP.

4.6 Whether the consideration of the specific issue would contribute to the purpose and effectiveness of the Guidelines

As determined above, the UK NCP does not consider that the issues raised in the complaint are within the scope of the OECD Guidelines and are not supported by sufficient evidence or argument to demonstrate how the issues are linked to the OECD Guidelines. The UK NCP does not consider individual labour disputes to be covered by the OECD Guidelines and the Complainant has not provided sufficient evidence supporting allegations that more employees have been treated the same way. Further, there is insufficient evidence that supports allegations regarding lack of trade union delegation. It is unclear to the UK NCP what the other issues are and how they relate to the OECD Guidelines. Therefore, the UK NCP does not consider that accepting the complaint would contribute to the purpose or effectiveness of the Guidelines.

5. Conclusion and next steps

The UK NCP rejects this complaint as it does not consider that issues raised in this complaint are related to the OECD Guidelines, are material or substantiated, and would further the effectiveness of the OECD Guidelines.

As this complaint has not been accepted, this Initial Assessment concludes the process under the OECD Guidelines.

6. Annexes

6.1 Annex 1 – UK NCP handling process 

Date	Action
25 April 2023	The UK NCP receives the complaint.
2 May 2023	The UK NCP confirms receipt of the complaint.
8 August 2023	The UK NCP discusses with the US NCP the similar complaint submitted by the same Complainant to them.
10 August 2023	The UK NCP informs the Respondent of the complaint.
14 September 2023	The UK NCP gives the Respondent an opportunity to respond to the complaint.
17 November 2023	The UK NCP informs the Respondent that it will draft the Initial Assessment without their response.
12 September 2024	The UK NCP drafts the Initial Assessment and shares the Initial Assessment draft and the factual commentary grid with parties.
26 September 2024	Deadline for parties to submit factual comments to the UK NCP.
22 November 2024	The UK NCP publishes the Initial Assessment.

6.2 Annex 2 – The provisions of the Guidelines referenced in the complaint 

Concepts and Principles

1. The Guidelines are recommendations jointly addressed by governments to multinational enterprises. They provide principles and standards of good practice consistent with applicable laws and internationally recognised standards. Observance of the Guidelines by enterprises is voluntary and not legally enforceable. Nevertheless, some matters covered by the Guidelines may also be regulated by national law or international commitments.

General Policies II

Enterprises should take fully into account established policies in the countries in which they operate, and consider the views of other stakeholders. In this regard:

A) Enterprises should:

1. Contribute to economic, environmental and social progress with a view to achieving sustainable development.

2. Respect the internationally recognised human rights of those affected by their activities.

3. Support and uphold good corporate governance principles and develop and apply good corporate governance practices, including throughout enterprise groups.

4. Carry out risk-based due diligence, for example by incorporating it into their enterprise risk management systems, to identify, prevent and mitigate actual and potential adverse impacts as described in paragraphs 11 and 12, and account for how these impacts are addressed. The nature and extent of due diligence depend on the circumstances of a particular situation.

Disclosure III

1. Enterprises should ensure that timely and accurate information is disclosed on all material matters regarding their activities, structure, financial situation, performance, ownership and governance. This information should be disclosed for the enterprise as a whole, and, where appropriate, along business lines or geographic areas. Disclosure policies of enterprises should be tailored to the nature, size and location of the enterprise, with due regard taken of costs, business confidentiality and other competitive concerns.

Human Rights IV

States have the duty to protect human rights. Enterprises should, within the framework of internationally recognised human rights, the international human rights obligations of the countries in which they operate as well as relevant domestic laws and regulations:

1. Respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.

2. Within the context of their own activities, avoid causing or contributing to adverse human rights impacts and address such impacts when they occur.

3. Carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks of adverse human rights impacts.

4. Provide for or co-operate through legitimate processes in the remediation of adverse human rights impacts where they identify that they have caused or contributed to these impacts.

Employment and Industrial Relations V

Enterprises should, within the framework of applicable law, regulations and prevailing labour relations and employment practices and applicable international labour standards:

1. a) Respect the right of workers employed by the multinational enterprise to establish or join trade unions and representative organisations of their own choosing.

b) Respect the right of workers employed by the multinational enterprise to have trade unions and representative organisations of their own choosing recognised for the purpose of collective bargaining, and engage in constructive negotiations, either individually or through employers’ associations, with such representatives with a view to reaching agreements on terms and conditions of employment.

1. a) Provide such facilities to workers’ representatives as may be necessary to assist in the development of effective collective agreements.

b) Provide information to workers’ representatives which is needed for meaningful negotiations on conditions of employment.

1. Promote consultation and co-operation between employers and workers and their representatives on matters of mutual concern.

2. In the context of bona fide negotiations with workers’ representatives on conditions of employment, or while workers are exercising a right to organise, not threaten to transfer the whole or part of an operating unit from the country concerned nor transfer workers from the enterprises’ component entities in other countries in order to influence unfairly those negotiations or to hinder the exercise of a right to organise.

3. Enable authorised representatives of the workers in their employment to negotiate on collective bargaining or labour-management relations issues and allow the parties to consult on matters of mutual concern with representatives of management who are authorised to take decisions on these matters.

Science and Technology IX

Enterprises should:

1. Endeavour to ensure that their activities are compatible with the science and technology (S&T) policies and plans of the countries in which they operate and as appropriate contribute to the development of local and national innovative capacity.

Taxation XI

1. It is important that enterprises contribute to the public finances of host countries by making timely payment of their tax liabilities. In particular, enterprises should comply with both the letter and spirit of the tax laws and regulations of the countries in which they operate. Complying with the spirit of the law means discerning and following the intention of the legislature. It does not require an enterprise to make payment in excess of the amount legally required pursuant to such an interpretation. Tax compliance includes such measures as providing to the relevant authorities timely information that is relevant or required by law for purposes of the correct determination of taxes to be assessed in connection with their operations and conforming transfer pricing practices to the arm’s length principle.

2. Enterprises should treat tax governance and tax compliance as important elements of their oversight and broader risk management systems. In particular, corporate boards should adopt tax risk management strategies to ensure that the financial, regulatory and reputational risks associated with taxation are fully identified and evaluated.

---

1. Commentary on the Implementation of the OECD Guidelines for Multinational Enterprises, OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (2011) ↩

2. Commentary on the Implementation of the OECD Guidelines for Multinational Enterprises, OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (2011) ↩

3. The OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (page 83, 2011) ↩

4. The OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (page 83, 2011) ↩

5. Commentary on General Policies, OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (page 24, 2011) ↩