Kenya tea pickers go to court

Summary: 500 former employees of James Finlay company in Kericho County Kenya, have filed a case in Scotland seeking damages for musculoskeletal injuries while on duty.

The big theme: Human rights issues are moving up the political and social agenda. And this goes a lot wider than most companies and investors will expect, covering the right to be protected from harm, and for culture and ways of life to be respected. And these rights increasingly have teeth.

Summary of an article published by The Times:

• Over 500 former employees of James Finlay company in Kericho County Kenya, have filed a case in Scotland seeking damages for musculoskeletal injuries while on duty. The case was filed in Scotland on September 29. 2021, following an initial lawsuit filed in December 2017 against the company in relation to seven different workers. Since then, the company has been fighting the case while simultaneously mechanising its tea harvesting. James Finlay Kenya is based in central London, but its registered offices are in Aberdeen, which is why the lawsuit was brought in Scotland.

• The victims’ lawyers claimed that all of the cases in the group proceedings raise similar issues of fact and law. It is also claimed that the claimants have all been injured and should be compensated for any pain and suffering. This includes any physical or mental injuries sustained by them as well as other financial losses. It is alleged their loss and injuries were caused by the company’s negligence. In particular, it is claimed that the company as an employer, was bound to take reasonable care for the safety of their employees, while at work, and to respond to the high incidence of injury by assessing the method of work to reduce or eliminate the risk of injury of their employees. This included providing the employees with reasonable training on how to carry out their duties without risk of injury, paying them reasonable wages, so that they would not be obliged to continue to work unreasonable hours or carry unreasonable weights over unreasonable distances and uneven terrain.

Let's look at why this is important...

Why this is important

• Decent standards of work (decent work) have always been at the heart and core of issues of social justice as well as protection of workers, workers’ rights and economic and social rights. Decent work directly influences one’s capacity to have decent standard of living as well as civil and political rights around participation and ability to make choices. It is also closely linked to avoiding exploitation (or as it is commonly called these days “modern day slavery”).

• Decent work has become a universal objective and has been included in major human rights treaties, UN Resolutions and outcome documents from major conferences including Article 23 of the Universal Declaration of Human Rights (1948), the World Summit for Social Development (1995), World Summit Outcome Document (2005), the high level segment of ECOSOC (2006), the Second United Nations Decade for the Eradication of Poverty (2008-2017), Conference on Sustainable Development (2011) and in the UN’s 2030 Agenda for Sustainable Development (2015) as well as the Covenant on Social, Economic and Cultural Rights and numerous International Labour Organization Instruments.

• During the UN General Assembly in September 2015, decent work and the four pillars of the Decent Work Agenda – employment creation, social protection, rights at work, and social dialogue – became integral elements of the new 2030 Agenda for Sustainable Development. Goal 8 of the 2030 Agenda calls for the promotion of sustained, inclusive and sustainable economic growth, full and productive employment and decent work. Key aspects of decent work are widely embedded in the targets of many of the other 16 goals.

• The continuum of exploitation captures not only the complex combination of situations that exist between decent work and forced labour (an environment that permits the existence of sub-standard working conditions), but also an individual work situation, as it evolves over time. The continuum of exploitation aids understanding of the persistent problem of the changing reality of work, captures various forms of exploitation up to forced labour and assists in identifying ways of addressing it. Sub-standard working conditions are not forced labour per se; neither is the lack of viable economic alternatives that makes people stay in such situations. However, that does not mean that people working in substandard work situations cannot claim that their human and labour rights have been violated.

• This case clearly shows what we have been speaking about in the weeklies before: that violations of rights overseas are no longer out of reach of jurisdictions with a tradition of respect for the Rule of Law and human rights. And that there is an obligation on private entities operating in jurisdictions other than the one where they are domiciled to operate according to human rights and labour standards or they risk paying the price.

Please read: important legal stuff.