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13 Okt 2021

Kenya: Tea workers sue James Finlay over working conditions & injuries; Incl. co. comments

In 2019, it was reported that Hugh James Solicitors, representing seven tea-pickers who had worked on James Finlay tea estates in Kenya, had filed seven cases at the All-Scotland Sheriff Personal Injury Court over the company's failure to provide safe working conditions.

The claimants argued they worked long hours with no lunch or breaks, and carried baskets filled with tea leaves that weighed up to 20 kilos, which left workers with severe injuries.

The claimants demanded Sh2 million each as compensation, and for James Finlay to settle the legal bills.

In March 2021, it was announced that seven workers were suing Finlays at the All-Scotland Sheriff Personal Injury Court and sought £15,000 each in damages.

When a sheriff ordered James Finlay to give the legal team access to the farms in Kenya, James Finlay challenged this in the Kenyan courts, arguing that an order from Scotland could not be implemented unless it was endorsed by a Kenyan court. The tea pickers appealed against the decision. However, in May 2021, the decision to deny access to the James Finlay estates was upheld by the Court of Appeal, arguing that the team needed to seek assistance from Kenyan authorities and courts before visiting the tea estates.

In October 2021, it was reported that the labour court had dismissed a second case by the tea pickers, seeking to compel James Finlay Kenya to release their medical records, to be used as evidence in a UK court. The judge argued that there had already been a similar case in 2019, which was before the Court of Appeal.

It was later reported in October 2021 that a new lawsuit had been filed in the Scottish Court of Session by 1,300 workers, demanding compensation for injuries they claimed were caused by their working conditions. In December 2021, ahead of judge Lord Weir's decision on granting an order for the group action to proceed, Finlay argued that the action did not meet the requirements of Scotland's rules on group litigation proceedings, and that the claim should be dealt with by the courts in Kenya. It also claimed workers' fears of intimidation and pressure by Finlay at the local level were 'unfounded'.

In March 2022, workers alleged they were given painkillers by company representatives to 'mask the pain' and allow them to continue working. Lawyers for the workers further argue that James Finlay viewed the painkillers as constituting 'medical assistance' and that some workers' spines were permanently damaged. Other workers sought damages based on psychological distress for not being able to work because of their injuries. Counsel for James Finlay argued the workers' complaint was insufficiently defined.

In May 2022, the Court of Session announced that James Finlay lost its appeal to throw out a decision allowing the workers to sue the tea company in Scotland. Lawyers for Finlay continued to argue that the workers' claims of medical injury were too vague to be actionable. Counsel for the workers also raised the issue that Finlay failed to respond to their requests for company documents. In April 2022, one of the lawyers representing the workers obtained an interdict from the Court of Session to prevent medical records from being destroyed.

In August 2022, it was alleged that James Finlay lost an appeal against the case being allowed to go ahead and had taken action through the Employment and Labour Relations Court in Nairobi, which issued an interim anti-suit injunction, preventing the workers from processing ahead with the case in the Scottish courts. This stalled the lawsuit regarding musculoskeletal injuries. It was later reported that the workers' lawyers had won a court order from the Court of Session, Scotland's highest civil court, telling James Finlay to end attempts to block the lawsuit through Kenyan courts, allowing the workers to pursue their class action regarding health complaints in the Scottish courts.

In December 2022, Business & Human Rights Resource Centre invited James Finlay to respond to reports that an employee of James Finlay had attempted to run over a Kenyan worker, because they were suing the firm for damages over poor working conditions. The full response can be found below.

In March 2023, it was reported that James Finlay Kenya's managing director was attempting to have the case tried in Kenya rather than Scotland, and suggested that workers' injuries were due to "carrying water as children".

In July 2023, the Court of Session ruled the workers' case could proceed in Scottish courts.

In November 2023, the Inner House of the Court of Session, Scotland's highest civil appeal court, ruled that the case should first be pursued in Kenya and placed the awarding of potential compensation on hold. James Finlay successfully argued it lacked sufficient connection to Scotland. The court noted that if it was presented with evidence that the workers could not obtain redress under Kenyan law, either through the Work Injury Benefits Act (WIBA) or the Employment and Labour Relations Court, then the Scottish case could proceed. Lawyers representing the plaintiffs are considering an appeal to the UK Supreme Court.