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Unilever lawsuit (re ethnic violence in Kenya)

In 2016, employees and residents of a Unilever tea plantation in Kenya filed a lawsuit against Unilever PLC and Unilever Tea Kenya at the High Court of Justice Queen's Bench Division in England. Plaintiffs allege Unilever failed to protect their workers from the foreseeable risk of ethnic violence. The Court held there was insufficient evidence to demonstrate that Unilever PLC dictated or advised on the terms of Unilever Tea Kenya's crisis management plans, therefore there is no jurisdiction over the English domiciled parent company. 

 

In 2016 employees and residents of a Unilever tea plantation in Kenya filed a lawsuit against Unilever PLC (the UK-domiciled parent company) and Unilever Tea Kenya Limited (the Kenyan-incorporated subsidiary) at the High Court of Justice Queen’s Bench Division in England. The claim was brought in relation to violent attacks that occurred on the plantation in 2007. The lawsuit alleges that Unilever Tea Kenya failed to protect their tea workers from the foreseeable risk of ethnic violence. 

In 2007, following local elections, numerous perpetrators(allegedly including co-workers who were employees of Unilever Tea Kenya Ltd) invaded the Unilever Tea Plantation and attacked hundreds of workers and their families (who were members of minority tribes) with clubs and machetes, killing and injuring large numbers of people.   It is alleged that Unilever placed these minority tribes in a position of particular risk, since they brought them to live and work on their Kericho Tea Plantation in large numbers, where they were surrounded by a tribe hostile to “foreigners”. Specifically, at election times “foreigners” can become the target of violent attacks.

Unilever has argued that the claims should be heard in Kenya, not in England and that the High Court should decline jurisdiction.  By contrast, the Claimants contend that it would be impossible to obtain justice via the Kenyan courts.  On 26 February 2016 and 1 March 2016, the Defendants filed applications for the claims to be stayed or dismissed, arguing that they were not justiciable in England or Wales because they require the court to adjudicate on foreign acts of state. They also applied for a stay of the proceedings, arguing that the claimant should bring their claims in Kenya and that the claims in England had been brought to improperly bring Unilever Tea into the latter jurisdiction. 

From 12 to 15 December 2016, the High Court of Justice Queen’s Bench Division heard the applications of the defendants for a stay of proceedings. The claimants argued that the Court had jurisdiction over the Kenyan company as a necessary party to the claim against Unilever PLC on the basis of a “parent company duty of care”. Moreover, they alleged that Unilever failed to take any or any adequate steps to protect the claimants from the foreseeable risk of attack. In particular, they argue that the company failed to identify the specific risk of post-election violence, to put in place adequate crisis management or security plans, and to take any adequate measures to protect the claimants in response to the violence.

On 27 February 2017, the High Court ruled that it did not have jurisdiction to hear the case. The court rejected the majority of the Defendants’ arguments but found that the claim against Unilever had no reasonable chance of success because, although the risk of violence was foreseeable in Kenya and in the Kericho area, it was not arguably reasonably foreseeable that violence would occur on the Plantation itself. The High Court of Justice therefore struck out the Claimants’ case. 

The Court of Appeal heard the Claimants’ appeal on 24-26 April 2018 and delivered its judgment on 4 July 2018.  The Court of Appeal did not deal with the substance of appeal on the foreseeability of the violence, but instead has found that there was insufficient evidence to demonstrate that Unilever PLC dictated or advised upon the terms of Unilever Tea Kenya’s crisis management plans (thus overturning the finding of the first instance Judge).  As a result, there was no jurisdiction over the English domiciled parent company.  The claimants will be seeking leave to appeal to the Supreme Court and have expressed regret that, instead of dealing with the substance of the issues raised, Unilever has sought to hide behind its’ corporate structure to block the claims from proceeding.  In January 2019, four organizations wrote a letter to the UK Supreme Court to support the plaintiffs' application for permission to appeal. On 17 July 2019, the Supreme Court refused the claimants’ application for permission to appeal the judgment of the Court of Appeal. 

In August 2020, a coalition of NGOs representing employees and residents of Unilever's Kericho tea plantation filed a complaint against the company to the United Nations Working Group on Business and Human Rights and the UN Special Rapporteur on Extreme Poverty and Human Rights.

News:

Court of Appeal upholds AAA v Unilever judgment, declining to allow parent company liability claim, Freshfields Bruckhaus Deringer, 12 July 2018
Parent Company Liability: Further Developments from the English High Court, 19 June 2017, Brodies
Another successful challenge to jurisdiction of English Court to hear claims against English domiciled parent companies in relation to acts of subsidiaries abroad, Herbert Smith Freehills, 8 March 2017

Company documents:

Unilever Group reply to CORE post ("Unilever: Time for real leadership on human rights") referring to Kenya tea workers, Unilever, 23 July 2018
Unilever Group reply to letter dated 19/04/2018 from REDRESS, CORE, ACCA and Kituo Cha Keria alleging human rights policy incosistency, Unilever Group, 30 April 2018

NGO documents:

- Unilever: time for real leadership on human rights, CORE (UK), 17 July 2018
Unilever PLC should redress harm to survivors of post-election attack in Kenya, REDRESS, 20 April 2018
- Letter to Mr. Paul Polman concerning corporate accountability issues in relation to a case involving Unilever Tea Plantation in Kenya, REDRESS, ACCA, CORE, Kituo Cha Sheria, 19 April 2018

Legal documents: 

- AAA & Ors v Unilever PLC and Unilever Tea Kenya Limited, Court of Appeal (Civil Division) Queen's Bench Decision, 4 July 2018
AAA & Ors v Unilever PLC and Unilever Tea Kenya Limited, High Court of Justice Queen's Bench Division decision, 27 February 2017

Company Responses

Unilever View Response
Unilever View Response

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