REPRESENTATIVES of 1,300 tea plantation workers have been shocked by claims made by a Scottish company at the centre of a multi-million-pound negligence action that they were not to blame for “unsafe” working conditions in Kenya.
Aberdeen-based tea company James Finlay, which supplies Tesco and Sainsbury’s, has said in its defence to concerns that no decisions about the working environment in Kenya are taken in Scotland.
It comes as the tea company is separately coming under scrutiny in Kenya over claims of exploiting tea-pickers with low rates of pay.
According to James Finlay’s financial statements, the typical member of staff, which includes everyone from management to production, was being paid just £2,660 a year in 2020. Meanwhile, the highest paid director was taking home a salary package of more than 100 times that level, at £274,837 plus £9,479 pension contributions.
In Kenya, the senate committee on labour and social affairs has been questioning James Finlay’s management team over its rates of pay and accusing it of taking advantage of a loophole in the collective bargaining agreement (CBA) to exploit harvesters.
The landmark lawsuit against the Scottish firm argues that workers were exposed to conditions that would clearly be harmful to would hurt them, resulting in permanently damage to their spines.
In the allegations, the Kenyan workers claim there was a routine practice of company representatives administering pain-killing drugs to employees who requested them without asking why they needed them.
Tea-pickers typically got paid just £25 a week for up to 12 hours in a six-day week and expected to carry up to two stones (12 kilos) of the pickings on their back for over half a mile of rough and hilly ground and slopes.
In some “extraordinarily” instances, they were expected to collect up to five stones (30kg) of tea in a day or not get paid.
James Finlay’s estates in Kericho, Kenya, stretch across almost 25,000 acres. It supplies big brands including Tesco, Sainsbury’s, Starbucks, the Co-op and Bettys & Taylors Group
It is alleged this gave rise to tripping and falling while carrying the pickings baskets and also prolonged the bending, twisting and reaching required in gathering the tea.
And it is claimed in evidence that, had similar working conditions existed in the UK, it was likely the company would have been shut down instantaneously by the Health and Safety Executive.
Legal representatives for the workers say: “It was reasonably foreseeable to a Scottish-based employer that this was a recipe for disaster. And we say that disaster manifested.”
Tea harvested by the workers on James Finlay plantations is stocked by many big brands including Tesco, Sainsbury’s, Starbucks, the Co-op and Bettys & Taylors Group.
James Finlay’s estates in Kericho stretch across almost 25,000 acres – the size of Cardiff – and include a Fair Trade-certified factory and farm. The company started up in 1750 as a Glasgow cotton trader and specialises in growing and processing tea and coffee around the world and is now part of global giant, the Swire Group, which has farms and factories in Kenya, Sri Lanka, Argentina, and China.
In order to examine seven original claimants in the case, a professor of orthopedics from Edinburgh travelled to Kenya where the tea farms operate. The professor found evidence of injury to workers’ spines, ageing their backs by as much as 20 years.
Around 7,000 people live and work on the firm’s tea farms, which harvesting 28 million kilos of leaves each year.
The case was filed in Scotland by a human rights-focused Nairobi law firm in Nairobi, Ronald K Onyango Advocates, and its Scottish agents, Thompsons.
In court documents, it is alleged the workers’ loss and injuries were caused by the company’s negligence and “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 h and high incidence of injury by assessing the method of work to reduce or eliminate the risk of injury of their employees,” court documents read.
“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”.
Court documents indicate that the damages sought by each claimant will inevitably vary according to their circumstances.
“Each of the victims will have a claim for pain and suffering and other financial losses. The aggregate value of the claims is anticipated to be many tens of millions of pounds,” according to court documents state.
The victims’ lawyers say 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.
Lord Weir is currently considering whether to sanction the group action in Scotland and whether there is a prima facie case to answer.
Andrew Smith QC for Thompsons which is seeking to take the action has told the Court of Session said: “One of the things that I must confess I find extraordinary here is because the defenders note that it’s nothing to do with [them]us. The connecting factors is they have a registered office in Scotland and they are the employer of these individuals. An employer has a number of obligations as employer towards his employees.”
He went on: “They say no decisions are taken in Scotland; the controlling mind of the company is not in Scotland; no decisions are taken in Scotland and their presence in Scotland is a historic artefact.
“They’re saying – ‘okay ‘We don’t actually do anything’. To which I say, you employ a lot of people in Kenya, you own and operate a number of tea plantations, so don’t tell us that you don’t do anything.
“If you’re not doing anything you should be doing things – in particularly you should be taking reasonable care for the safety of your employees.”
“The idea that this is a company that’s just a one pound company ticking over with happenstance doesn’t seem to be supported.
“What we say is that it was reasonably foreseeable to a Scottish-based employer this was a recipe for disaster. We say that disaster actually manifest.”
James Finlay (Kenya) Limited made a loss of £12 million in a Covid-ravaged 2020 – up from a £8.5m loss the previous year. Payroll costs for the 6,667 staff amounted to more than £17.328m last year.
Financial statements reveal that the board said that hailstorms within the first four months of 2020 adversely affected the peak production months of April and May.
In November, Director Julian Rutherford, in a statement signed off on November 11, said that efforts have been made by management to prepare for a possible outbreak of Covid but, to date, only a handful of employees had shown symptoms of the virus.
Representatives of the workers for those taking the action ask why, say that if they were monitoring for Covid, why were they not monitoring for any muscular issues?
The statement says directors “must have regard for likely long-term consequences of decision and the desirability of maintaining a reputations for high standards of business conduct”.
It adds: “The directors must also have regard for the interests of the company’s business relationships with the company’s wider stakeholders and the impact of the company’s operations on the environment and communities in which it operates.
“Where authority for decision-making is delegated to the executive management team it ensures that it has regard for the likely long-term consequences of decisions, maintaining a high standard of business conduct, employees interests, business relationships with wider stakeholders, the impact of business operations on the environment and communities and other relevant factors.”
“The executive management team is part of the group’s governance and internal controls framework through which good corporate governance, risk management and internal control is promoted and does not derogate from any requitement [sic] for board review, oversight or approval in relation to the company’s activities.”
Mr Smith said: “What we will be arguing is that if these practices were adopted in Scotland, it’s likely that they would be closed down pretty well instantaneously. How can an employer be exercising reasonable care for of the safety of the employee, if you don’t do anything about it and don’t take care of the decisions? I find that utterly incongruous and very difficult to comprehend.”
John Thomson, acting for James Finlay, has argued moved to state that claimants’ concerns that they would be intimidated at local level were was “unfounded”.
“The company has existed in one form or another since 1750 and they have been involved in Kenya for a substantial amount of that time,” he said. “Any suggestion that they would exert pressure or intimidate individuals is anathema to them.” he said.
He said the claim was “opaque” and did not set out a case that would allow rebuttal, insisting . He said it did “little more than narrate a generic description from which it is not possible to extract what is said to be same, similar, or related issues”.
He also said that hand-plucking had been used less and less over as time progresses and as mechanisation has developed advances. In 2010, hand-plucking took up 47 per cent of the time spent on tea harvesting, in 2018 this dropped to 14% and in 2019 the figure had fallen to was at zero percent.
He said that two decades ago James Finlay had recognised that mechanisation minimised manual handling and “to a large extent” the company had “led the way”.
Sammy Kirui, Finlay’s director of corporate affairs, in a statement has said they were saddened by the alleged mistreatment.
“We cannot comment on the ongoing litigation, but Finlay’s is committed to maintaining high standards and working conditions for our employees,” he said.
The company added that it takes any allegations of failure to meet the standards seriously and is committed to thoroughly investigate any alleged failure to meet the standards.
“The allegation relates to a period when some of our employees picked tea by hand. This is no longer the case in our Kenyan operations. Regardless of changes which have taken place, we will still appoint an independent third party to visit and report conditions at the Kenyan locations referee,” added Mr Kirui.
He said that the safety and wellbeing of the company’s employees remains a top priority.
“Finlay is committed to being a safe and inclusive workplace for all,” said Mr Kirui.