Kenyan tea pickers’ Scottish compensation case on hold
Appeal judges have halted a compensation case brought by Kenyan tea pickers against their employer in Scotland’s highest civil court.
James Finlay Kenya Ltd (JFK) is fighting the multi-million pound damages claim at the Court of Session.
In a major setback to their case, the workers have been told they should seek redress in Kenya before the Scottish action can go any further. Their lawyers say 3,700 Kenyans are now involved. They are considering an appeal to the UK Supreme Court.
Aberdeen-registered JFK is one of the world’s biggest suppliers of tea. When the action began, it was part of a multi-national operation which can trace its roots back to a company founded in 1750 by Glasgow textile merchant James Finlay.
The workers claim they suffered musculoskeletal injuries because of working conditions on tea farms in the Kenya’s Kericho region. They launched what is known in the Scottish legal system as group proceedings, a class action lawsuit seeking compensation.
Throughout the action, JFK has argued it has no connection to Scotland, other than its registered historical address, and that the claims should be dealt with in Kenya.
Earlier this year Court of Session judge Lord Weir ruled that the case should be allowed to proceed in Scotland. That was challenged by JFK’s lawyers in the Inner House of the Court of Session, the country’s highest civil appeal court. The Inner House has now ruled that the cause should be “sisted,” meaning it’s been stopped from going any further for now.
The three judges concluded that the workers could not show at this stage whether or not they could get redress through Kenya’s Work Injury Benefits Act (WIBA), a no-fault compensation scheme. They also ruled that the Kenyan workers had the right to appeal to the country’s Employment and Labour Relations Court.
In a written judgement, Lord Carloway, who sat with Lords Pentland and Lord Doherty, said if they were presented with evidence that WIBA was not giving the workers justice, the Scottish case could be allowed to resume.
Solicitor Patrick McGuire, who’s representing the tea workers involved in the case, said he was surprised and disappointed by the judgement. “We are now actively considering whether to appeal to the UK Supreme Court,” he said. “We’re also considering how, if at all, we can encourage 3,700 claimants to try to progress their claims through WIBA, which we think would be a feat of impossibility.”
Mr McGuire said the case which had been sisted involved 2,700 workers. Another 1,000 are taking part in an associated case which was brought to a temporary halt by the courts in Kenya.
The tea pickers have claimed they were routinely asked to work up to 12 hours a day without a break, for six days a week, earning in 2017 an average monthly wage of £100. The court also heard evidence that pickers had to harvest a minimum of 30kg (4st 10lb) of tea to be paid anything at all.
The workers asked for compensation from the business, claiming their bosses did not do enough to prevent them from suffering debilitating workplace injuries.
At a hearing in March, JFK’s managing director Simeon Hutchinson suggested the workers may have damaged their backs while carrying water as children. Mr Hutchinson argued that a UK-based court would have difficulty comprehending how people live their lives in the African country and Kenyan workers could struggle to understand lawyers’ Scottish accents.
He told the court: “Before WIBA, when ambulance chasing was rife in Kenya, lawyers had an incentive to look for injury cases because they could make a lot of money. “Once WIBA was brought into law, those practices have been brought to an end.”
A spokesperson for JFK welcomed the judgement from the Inner House. “The safety and welfare of everyone connected with our business is always our number one priority,” they said. “We believe that the proper place to address allegations brought by Kenyan citizens regarding their employment in Kenya is in the Kenyan Courts.”
(BBC)
