Scottish courts ‘can’t understand African culture’
Damages bid by Kenyans should be thrown out, says tea firm boss
A COMPENSATION claim brought in Scotland by up to 2,000 Kenyan tea pickers should not be heard here because judges would ‘not understand’ African culture, a court has heard.
Businessman Simeon Hutchinson, 58, also claimed witnesses could find ‘strong Scottish accents’ a ‘challenge’.
Mr Hutchinson is the managing director of James Finlay Kenya Ltd (JFK), one of the world’s largest suppliers of tea.
The company is being sued by employees in a so-called ‘class action’ as they say the firm did not do enough to prevent them suffering workplace injuries.
The workers are seeking compensation but want the matter to be heard in Scotland because their lawyers believe the firm is registered in Aberdeen. The company was founded in the 18th century by Stirlingshire cotton trader James Finlay but Mr Hutchinson claims it no longer has links to Scotland.
Lawyers for the company want Court of Session judges to stop the action from proceeding. The firm’s legal team says that the Scottish court has no jurisdiction to hear the matter and the claims should be heard by a judge in Kenya as the alleged injuries took place there. Mr
Hutchinson told his lawyers that many employees live in rural areas and had to carry large containers of water when they were children. As a consequence, they developed ‘musculoskeletal injuries’, he claimed.
On the first day of proceedings yesterday, Mr Hutchinson’s advocate, Lord Davidson of Glen Clova, KC, read excerpts from a statement which the businessman gave to his lawyers, claiming a Scottish court may have difficulty distinguishing between injuries which had been sustained from workplace activity or from childhood.
He said in the statement: ‘There is another issue – the Scottish court will not understand the cultures of Kenya.’
Mr Hutchinson, who flew in from Kenya to give evidence at the Court of Session, told Lord Davidson: ‘Many people live in rural Kenya, employees of JFK included, where there’s neither running water being piped into the houses nor electricity, and they live in areas where the roads are really, really rough.
‘Any member of a family would be tasked with fetching water from the nearest source, which may be a stream or a spring or a well and would have to carry it back to the house.’
He added they would also have to collect firewood ‘and very often it’s the younger kids who are tasked with carrying out these chores’.
Mr Hutchinson told the court of how employment law in Kenya is quite favourable to employees. He made reference to a piece of legislation called the Workers Injury Benefits Act.
Up to 2,000 workers may participate in the current action should it be given permission to proceed.
Mr Hutchinson claimed this may have a ‘disruptive’ effect on his business if the workers had to travel to Edinburgh to give evidence.
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’s people speaking with strong Scottish accents – there could be the risk of losing something in interpretation or misunderstandings. There would be potential for quite a challenge and not everybody speaks in English.’
Lord Davidson asked: ‘If matters went before the director of occupational health and safety in Kenya, would there be any interpretation problems there?’
Mr Hutchinson replied: ‘There would not be any problem with interpretation in that circumstance.’
Speaking about the company, Mr Hutchinson told Lord Davidson: ‘It has no business in Scotland at all. There are no employees nor offices – there is no business whatsoever in Scotland.’
The hearing continues.
‘No business in Scotland’