James Finlay (Kenya) Ltd, an Aberdeen-based giant multinational operating in Kenya and stocks major UK Supermarkets brands including Tesco, Sainsbury’s, Starbucks, The Co-op and Betty & Taylor’s Group with their tea, coffee and botanical products has sued 1,044 Kenyan tea workers in the Kenyan courts with costs and other demands after they had complained to the UK courts in Scotland concerning an oppressive, exploitative and poor working conditions at Finlays Kenyan tea plantations. They claim that working at the plantations resulted in severe and permanent injuries to their spines and psychological injuries. The tea workers are supported by a local NGO Justice and Environment Foundation. The suit on behalf of the tea workers has been brought by a human right focused Nakuru-based law firm in Kenya, Ronald K Onyango Advocates LLP (‘RKO’) working as co-counsel with an established UK trade Union Law firm, Thompsons Solicitors Scotland and Ozon Solicitors in England. The Lawyers represent over 1,000 Kenyan tea plantation workers at the Scottish court against the giant multinational, James Finlay (Kenya) Ltd (‘Finlay’).
On 16 th February 2022, the Scottish court allowed the workers to sue James Finlay under a Group Litigation Action. Lord Weir in the Court of Session has accepted that the workers had a prima facie case in Scotland and allowed the class action to be heard. The complaints came as the tea company which can trace its roots back in Scotland in the 18 th Century, is coming under scrutiny in Kenya over claims of exploiting tea pickers with low pay rates and poor working conditions. The workers lodged a lawsuit against the Scottish firm arguing that workers were exposed to conditions that would clearly be harmful to their health, resulting in permanent damages to their spines and psychological injuries.
A previous court hearing had heard the pickers claim they were routinely asked to work up to 12 hours a day without a break, for 6 days a week, earning in 2017 an average monthly wage of £100. Pickers had to harvest a minimum of 30 kg (4th 10lb) of tea to be paid anything at all, it was claimed. In the allegations, the Kenyan workers claim there was a routine practice of the company representatives administering pain-killing drugs to employees to mask the pain known as ‘Dawa na Kazi’, without asking why they needed them. It is claimed in evidence that similar working conditions existed in the UK, it was likely the company would have been shut down instantaneously by Health & Safety Executives. Lawyers acting for the tea workers said that “it was reasonably foreseeable to a Scottish-based employer that this was a recipe for disaster. And we say that disaster has manifested”.
Over 1,044 workers affected have so far joined the Scottish suit against James Finlay. The Sottish Courts gave 6 months window to the tea workers who wished to be enjoined in the suit to come forward.
Immediately after Lord Weir made an order allowing the Scottish Group Proceedings to continue, James Finlay embarked on a series of campaigns against the workers calculated and intended to dissuade them from joining the suit and to intimidate those in the suit from continuing. The aim was to prevent other potential victims from coming forward to join the suit in Scotland. The illegal campaigns intensified against the tea workers including one tea worker whose house he claims was broken into by representatives of James Finlay after his refusal to hand back the dismissal letter demanded by James Finlays and the only item stolen from his house located in the James Finlay’s Estates was his dismissal letter. He claimed the aim was to retrieve the dismissal letter citing the reasons for his dismissal being directly connected to the suit in Scotland, which he had been issued on 7 th April 2022 a day before the Scottish courts on 8 th April 2022 gave interim interdict orders (interim injunction) stopping James Finlays from any direct or indirect acts of intimidation or victimisation against the vulnerable tea workers. Another tea worker complained in an affidavit filed in Court complained that being part of the case resulted in threats by James Finlay concerning his disabled son who depended on the treatment and support from Finlay’s Medical facilities and was threatened with consequences of dismissal which would, in turn, affect his disabled son. Lawyers acting for the workers moved to court to prevent the reported intimidation. On 13 th July 2022, James Finlay was forced to provide an undertaking to the Scottish court before Lord Braid, signed by its directors following the interim interdict orders, ‘injunction proceeding’ brought by the tea workers’ Lawyers with promises not to carry out any acts of intimidation whatsoever or dismissal of workers until the end of the Group Proceedings in Scotland.
The workers’ Application for an Order restraining James Finlay was then sisted (stayed) on acceptance of the Directors’ undertaking. Hardly two weeks have passed since the date of the undertaking given to the Court by James Finlay’s directors and all the 1,044 who had lodged a suit in Scotland have been sued in a Kenyan Court by James Finlay on 26 th July 2022 in Kenya, demanding the workers to drop their complaints in Scotland, which focus on their complaints against James Finlay’s exploitative and oppressive regime at their plantations and the workers claim have resulted into serious harm to their physical and psychological health. The suit in Kenya has also sought that the injunction orders direct the interim-anti suit injunction Orders issued, the Summons, the Petition and the application be posted on the general employee’s notice boards within James Finlay’s premises. The suit also seeks an interlocutory anti-suit injunction against the tea workers restraining them from initiating any other or further suit action or proceedings or filing any suit or claim against James Finlay in any court/tribunal or forum outside of the Republic of Kenya. They are also seeking costs against these vulnerable workers. The suit comes barely a fortnight after the presiding Judge Lord Braid made orders upon acceptance of an undertaking by Finlays which prevented them from acting unlawfully including not to;
“make any threat whatsoever, whether by words or action to any employees at any of their estates in Kenya which is calculated to intimidate any employees from joining in or continuing with or commencing litigation against James Finlay (Kenya) Limited in Scotland”
“act in any manner not in accordance with due process in the court of either Scotland or Kenya that is calculated to cause fear, alarm or distress to those employees and former employees of the respondent as named on the group register with the intention of dissuading those employees or former employees from continuing with litigation againstJames Finlay (Kenya) Limited in Scotland”
Representatives of Justice and Environment Foundation NGO supporting the suit said, that ‘These recent actions by Finlay are not surprising, clearly targeted to dissuade others from taking legal action in Scotland or any other suit, calculated to intimidate these vulnerable poor workers. These poor working conditions amount to Human rights abuses.’.