REPRESENTATIVES of 1,300 tea plantation workers have won a "huge victory" in a multi-million-pound negligence action against a Scots company which says it is not to blame for “unsafe” working conditions in Kenya.

Aberdeen-based tea company James Finlay, which supplies Tesco and Sainsbury’s, has been fighting to have the case involving Kenyan workers heard in Kenya.

But judge Lord Weir has said that the case will be heard in Scotland in a move that has been described as a "historic day for Scots law" by the solicitor representing the workers.

It was feared that a case heard in Kenya would effectively kill the proceedings, as Lord Weir agreed there was real risk that the group claimants would not get substantial justice if the cases were not heard in Scotland.

It comes as the tea company has come separately under scrutiny in Kenya over claims of exploiting tea-pickers with low rates of pay.

James Finlay said it believes the proper place to address the allegations is in Kenya and that it was "therefore" reviewing Lord Weir's judgment and deciding on any "appropriate steps".

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.

The Herald:

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.

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.”

Legal representatives for James Finlay insisted that the applicable law in dealing with the action is in Kenya under the Kenyan Work Injury Benefits Act 2007 (WIBA) And they said that a judgment that is a delivered by a court in respect of a work-related injury claim outside the provisions of WIBA "has been held by the Kenyan courts to be a nullity".

They said: "In Kenya the case will be more suitably tried, taking into account the interests of all of the parties and the ends of justice.

"It is inequitable that the representative party can seek to ignore the provisions of Kenyan law and seek to oust the jurisdiction of the compulsory statutory scheme. The cause is likely to raise issues which require an understanding of Kenyan culture, behaviour and custom. Such matters are outwith Scottish judicial knowledge."

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But legal representatives for the workers say that WIBA is a dispute resolution process rather than a judicial scheme and that there was "no prospect" of them obtaining "substantial justice" before the Kenyan courts.

They added:" Without claims proceeding in Scotland, it is highly likely that they will not proceed at all. Without doubt, even if the occasional claimant could proceed in Kenya, vast numbers from the current cohort would simply require to give up.”

Tea harvested by the workers on James Finlay plantations has been stocked by many big brands including Tesco, Sainsbury’s, Starbucks, the Co-op and Bettys & Taylors Group.

Patrick McGuire partner at Thompsons Solicitors and lawyer for the Kenyan workers said of the judgement: "It is almost impossible to overstate the importance of today’s judgment. It is an historic day in Scots Law.

"It represents the passing of two key milestones in the Kenyan workers’ journey for justice. And it serves as a stark message to every company based in Scotland that they must take their employees’ safety seriously no matter where they work work around the world. The court has spoken - if you choose to set your company up in Scotland then the Scottish Courts will follow you wherever you operate."

He said the company has now been forced to come to court to defend their actions. "They of course cannot defend those conditions I therefore call upon them to finally do the right thing and pay fair and just compensation to all of the claimants in these group proceedings," he said.

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.

Video of Kericho tea plantation.

In court documents, it is alleged the workers’ 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,” 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.

A James Finlay spokesman said: “The safety and welfare of everyone connected with our business is always our number one priority. James Finlay Kenya is legally established in Kenya and we respect the sovereignty of the Republic of Kenya as an independent state and are bound by her constitution and laws.

"We believe that the proper place to address allegations brought by Kenyan citizens regarding their employment in Kenya is in the Kenyan Courts. We are therefore reviewing Lord Weir’s Opinion and deciding on appropriate next steps.”