Appeal judges have halted court proceedings against an Aberdeen firm being sued by 2,000 Kenyan tea pickers for workplace injuries compensation.
Lords Carloway and his colleagues concluded on Tuesday that employees of James Finlay (Kenya) Limited cannot continue their damages claim for the time being.
Earlier this year, Lord Weir had ruled that the legal action in Scotland’s highest civil court – the Court of Session – could progress against one of the largest suppliers of tea.
Lawyers for the company, which was founded in Aberdeen in 1750, had gone to the court to ask Lord Weir to stop the so-called ‘class action’ from continuing.
The workers want compensation from the business as they say bosses there didn’t do enough to prevent them from suffering debilitating workplace injuries.
Disagreement over who has jurisdiction to hear the case
They want the matter to be heard in Scotland because their lawyers believe that, because the firm is registered in Scotland, the Court of Session has jurisdiction to deal with the matter.
However, lawyers for Finlay’s argued that the Court of Session doesn’t have jurisdiction in the matter and that the claims should be heard in Kenya where the workers claim they suffered injuries.
In a written judgement published earlier this year, Lord Weir rejected the arguments made by Finlay’s advocate Lord Davidson of Glen Clova KC and concluded that the Scottish court had jurisdiction.
This prompted lawyers for James Finlay to go to the Inner House of the Court of Session – Scotland’s highest civil appeal court.
Lord Davidson argued that Lord Weir had made mistakes in his judgement and that the matter shouldn’t proceed in Scotland.
In a written judgement issued by the Inner House on Tuesday, Lord Carloway and his colleagues sisted proceedings.
A sist is a mechanism in Scots law to stop matters from proceeding in the meantime.
Why the claims should be dealt with in Kenya
Lord Carloway, who sat with Lords Pentland and Lord Doherty, said the types of injuries sustained by the workers could be dealt with by Kenya’s Work Injury Benefits Act (WIBA) – a no-fault compensation scheme.
He also ruled that the Kenyan workers had the right to appeal to Kenya’s Employment and Labour Relations Court.
The appeal judges concluded that the claims should be dealt with in Kenya.
Lord Carloway wrote that the Scottish court could not determine at this stage whether Kenya’s WIBA scheme couldn’t provide the workers with justice.
He concluded that if the Court of Session was presented with evidence that WIBA wasn’t giving the Kenyan workers justice, then Scottish judges could recall the sist.
This would allow the action to continue in Scotland.
He wrote: “The appropriate manner of proceeding is to sist these proceedings pending resolution of the claims under the WIBA including any appeals to the ELRC, in Kenya.
“If the court’s construction, or its understanding of the practical operation of the WIBA, turn out to be ill-founded, or if the WIBA claims were not determined in accordance with the scheme, or if there were to be excessive delay, the court may have to revisit the question of substantial justice and consider whether the sist should be recalled.
“However, the court cannot determine, as matters presently stand, that the WIBA, if it operates as its terms suggest, is not capable of providing substantial justice.
“The concept of such justice applies to both parties and envelops the general public interest.”
‘Extremely difficult’ conditions for pregnant workers
The Finlays group is one of the world’s biggest producers of tea and coffee and includes Starbucks among its customers.
It operates on five continents and can trace its origins back to James Finlay, a cotton merchant who founded the business in Scotland in 1750.
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 six days a week, earning an average monthly wage of £100 in 2017.
An earlier hearing also heard the claim that pickers had to harvest a minimum of 30kg (4st 10lb) of tea to be paid anything at all, it was claimed.
Lord Weir also heard that pregnant workers didn’t have maternity leave and had to work in “extremely difficult” circumstances.
In January 2022, a Scottish judge gave permission for the action to proceed and a figurehead for the action – lawyer Hugh Campbell KC – was appointed to allow the action to proceed in his name.
Mr Campbell’s lawyer was Andrew Smith KC.
Earlier this year, Finlay’s managing director Simeon Hutchinson, 58, provided a legal statement saying that a UK-based court would have difficulty comprehending how people live their lives in the African country.
‘A jurisdictional dilemma’
Lord Davidson read excerpts from a statement which Mr Hutchinson gave to his lawyers at the court hearing about how a Scottish court wouldn’t understand Kenyan culture.
He told the lawyers that a Scottish court may have difficulty distinguishing between injuries which had been sustained from workplace activity or from childhood.
Mr Hutchinson told his lawyer that his employees could feel challenged if they had to give evidence to legal practitioners with strong Scottish accents.
He added: “English is a second language probably for the majority of employees employed by JFK.
“Being a second language could be a challenge for these employees particularly if there are people speaking with strong Scottish accents – there could be the risk of losing something in interpretation or misunderstandings.”
In the judgement published on Tuesday, Lord Carloway said that if the Scottish court dealt with the case, it would have to apply Kenyan law in its decision.
He wrote: “This creates a jurisdictional dilemma.
“If this court were to deal with the claims, it would have to do so under Kenyan law as if it were applying the WIBA.
“As the representative party accepted, if the WIBA applied, that would point towards the convenience of the claims proceeding in Kenya.”
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