The issue of Scottish compensation for tea pickers is pending
Appeal judges have stayed a compensation case brought by Kenyan tea pickers against their employer in Scotland’s highest civil court.
James Finlay Kenya Limited (JFK) is fighting a multi-million pound damages claim in the Court of Session.
In a major setback to their case, the workers were told they would have to seek compensation in Kenya before the Scottish action goes any further.
Their lawyers say 3,700 Kenyans are now participating.
They are considering an appeal to the UK Supreme Court.
Aberdeen-registered JFK Airport is one of the world’s largest tea suppliers.
When the action began, it was part of a multinational operation that can trace its roots back to a company founded in 1750 by Glasgow textile merchant James Finley.
The workers claim they suffered musculoskeletal injuries due to working conditions on tea plantations in the Kericho region of Kenya.
They launched what is known in the Scottish legal system as a class action, a class action seeking compensation.
Throughout the lawsuit, JFK argued that it had no connection to Scotland, other than its registered historical address, and that the claims should be dealt with in Kenya.
Earlier this year, High Court judge Lord Weir ruled to allow the case to proceed in Scotland.
JFK’s lawyers challenged this in the Interior of the Court of Session, the nation’s highest civil appeals court.
The House has now ruled that the case must be “upheld”, meaning it has been blocked from going ahead for the time being.
The three judges concluded that the workers were unable at this stage to prove whether they could obtain compensation through the Kenya Work Injury Compensation Act (WIBA), a no-fault compensation system.
It also ruled that Kenyan workers have the right to appeal to the country’s Employment and Labor Relations Tribunal.
In a written ruling, Lord Carloway, who sat with Lords Pentland and Lord Doherty, said that if evidence was presented to them that WIBA had not given workers justice, the Scottish case could be allowed to appeal.
Attorney Patrick McGuire, who represents the tea workers involved in the case, said he was surprised and disappointed by the ruling.
He added: “We are now actively considering whether to appeal the ruling to the UK Supreme Court.”
“We are also thinking about how to encourage the 3,700 claimants to try to advance their claims through WIBA, which we believe would be an impossible feat.”
Mr McGuire said the case being considered involved 2,700 workers. Another 1,000 people are involved in a related case that has been temporarily halted by the courts in Kenya.
The tea pickers claimed they were routinely asked to work up to 12 hours a day without a break, six days a week, and in 2017 received an average monthly wage of £100.
The court also heard evidence suggesting that tea pickers had to harvest at least 30 kg (4 10 lb) of tea to get anything at all.
Carrying water like a child
The workers demanded compensation from the company, claiming that their bosses did not do enough to prevent them from suffering debilitating injuries in the workplace.
At a hearing in March, JFK’s chief administrative officer, Simon Hutchinson, suggested that workers may have damaged their backs carrying water as children.
Mr Hutchinson said a UK-based court would have difficulty understanding the way people live their lives in the African country, and Kenyan workers might have difficulty understanding lawyers’ Scottish accents.
He told the court: “Before WIBA, when ambulance chasing was common in Kenya, lawyers had an incentive to pursue injury cases because they could make a lot of money.
“Once WIBA came into effect, these practices were put to an end.”
A spokesman for JFK welcomed the Interior House ruling.
“The safety and well-being of all people associated with our business is always our number one priority,” they said.
“We believe that the appropriate venue to address claims made by Kenyan citizens in relation to their employment in Kenya is the Kenyan courts.”