Unilever

In December 2007, following the Kenyan general election result, ethnic violence broke out in Kenya. Large groups of attackers invaded Unilever’s Tea Plantation in Kericho.

They targeted and attacked workers who were not indigenous to the area, together with their families, with clubs and machetes. Hundreds of workers were attacked and the attackers committed widespread rape. Thousands fled the Plantation to reach places of safety.

The Unilever Plantation in Kericho has an estimated residential population of over 100,000.

The numbers of employees alone represented 11% of Unilever’s global workforce, the largest concentration of Unilever employees anywhere in the world.

According to the Claimants, Unilever had placed their workers in a position of serious risk because most were from tribes that are not indigenous to the area. As a result, at times of social unrest specifically during elections, they are potential targets of ethnic violence.

Leigh Day represents 218 Claimants who were victims of that violence, including the families of 7 victims who were brutally killed, 56 women who were raped and many others who were subjected to serious physical attacks which left many with ongoing physical and psychiatric injuries. Significantly, the Claimants contend that the attackers included their fellow Unilever employees.

The Claimants contend that Unilever failed to exercise reasonable care and skill to protect their tea workers from the foreseeable risk of ethnic violence in 2007 and was therefore negligent.

Elections in Kenya are characterised by repeated patterns of serious ethnic violence and tension between tribal groups. There were widespread warnings of impending serious violence prior to the 2007 election, including multiple threats which were reported to local Unilever management and regular reports of mounting violence in the domestic and international media and by political risk agencies.

The Claimants argue that nothing was done to enhance the protection of residential areas, although measures were taken to protect management housing and company assets.

The risk of violence was not appropriately assessed, no adequate precautions were taken to protect workers and their families from violent attack and, when the crisis hit, Unilever (whose senior local management was largely on holiday) failed to respond appropriately. They were left to fend for themselves when violence broke out.

The Claimants contend that had a proper crisis management and preparedness plan been put in place this tragedy would have been averted.

The case was filed in the London High Court in 2015 and Unilever has vigorously fought the case to persuade the English Courts to decline jurisdiction in favour of the Kenyan Courts.

However, the Claimants are clear that there is no prospect that the case can proceed in Kenya without placing them at significant risk of violence or intimidation.

Specifically, those Claimants who continue to work on the plantation are at risk of attack if their individual identities were leaked and it were to become known that they were seeking legal redress.

The history of witness intimidation and death in other cases arising out of the 2007 electoral violence is a matter of public record2. The Claimants’ concerns have been upheld by the High Court.

At first instance the Judge held that “if the Cs [the Claimants] were to litigate in Kenya there is a real risk that… they would be exposed to further violence” and that “there is cogent evidence… that the Cs [the Claimants] will not get substantial justice in Kenya”.

Those findings have not been questioned by the Court of Appeal. Accordingly, the English case represents the only potential avenue for legal remedy. The Claimants assert that Unilever has, therefore, effectively fought to deprive them of any possible access to remedy by arguing that such a claim should only proceed in the Kenyan courts.

The Claimants contend that their claims necessarily concern Unilever Plc in London because the crisis management expertise upon which Unilever Tea Kenya (“UTKL”) relied, resided in Unilever Plc. Further, Unilever PLC was responsible for ensuring that effective procedures were in place in UTKL and that people were adequately trained. The Claimants argue that UTKL failed to adequately assess, plan for and respond to the risk of violence precisely because Unilever PLC had failed to ensure adequate crisis management systems were in place.

At first instance the High Court rejected the majority of Unilever’s arguments (including crown act of state and limitation) and held that there was cogent evidence that the victims would not get justice in Kenya and that Unilever Plc had ”assumed apparent control of the content and auditing”4 of the relevant policies and procedures.

However, the judge also ruled that in her view the risk of violence was not foreseeable on the Plantation (because there had not been similar violence on the Plantation in the past) although she found that the violence had been foreseeable in Kenya generally and even in Kericho town which borders onto the Plantation.

The Claimants contend that if violence was foreseeable in Kericho it follows necessarily that it was foreseeable on the unfenced Plantation which sits right next to the town.

The Claimants appealed to the Court of Appeal on the grounds that the judge was wrong to rule that the precise scale and nature of the violence needed to be foreseeable. It is sufficient in law that the workers faced a real risk of violence which should not have been ignored for a duty to arise.

That point was not ultimately addressed by the Court of Appeal, which overturned the High Court’s assessment as to the case against Unilever Plc and declined jurisdiction on the basis that there was insufficient evidence that Unilever Plc was actively responsible for the alleged crisis management failings of its Kenyan subsidiary.

On 29 August 2018 the Claimants sought permission to appeal to the Supreme Court. Permission to appeal was rejected by the Supreme Court on 17 July 2019.

Unilever has thus succeeded in blocking our clients from any prospect of access to remedy by relying on its corporate structure, in the knowledge that it would be impossible for the case to proceed in Kenya.

In response to letters and statements from leading human rights and corporate accountability NGOs about the case Unilever issued a public statement on 23 July 2018. 

In that statement several points were made which the Claimants considered to be inaccurate and which they decided to publically refute in a letter addressed to the Unilever CEO on 25 September 2018.

They replied to the Unilever’s contentions as follows:

Unilever contention: “An international commission of enquiry set up by the Kenyan Government concluded the scale and ferocity of the attacks was not foreseeable.”

Claimants’ Response:  This is false.  The international commission of enquiry that was set up by the Kenyan Government (“the Waki Commission”) did not find that the violence was “not foreseeable”.  

In the Court proceedings, the Claimants filed a statement by the Secretary to the Waki Commission, Mr George Kegoro, who states in clear terms: “The Waki Commission’s overall findings indicate that in its view, the risk of violence around the 2007 Election was foreseeable, and in fact was foreseen by Kenyan security agencies.  The Waki Commission makes clear in its report that by 2007, there was a well-established pattern of intense ethnic violence and civil unrest around elections in Kenya and that this pattern had been exhaustively investigated and analysed by previous commissions of inquiry, including the Akiwimi Commission”.  Further, the Claimants are clear in their letter to Unilever’s CEO that “We raised our fears with local management, but they did not listen to us, they did not help us, and when the attackers came, we were left to fend for ourselves.”

Unilever’s contention: “Unilever provided significant support to those employees impacted… employees whose possessions had been looted were provided with replacement items...  Anyone unable to undertake their previous role was retrained to take up a different job and medical support and counselling were freely available…. $500,000 was provided specifically to help our employees… Every Unilever Tea Kenya employee was also provided with compensation in kind to offset the impact of loss of earnings…”

Claimants’ Response:  This contention is inaccurate. In their public response to Unilever, the Claimants are clear that they were sent away from the plantation for 6 months and did not receive any salary during that period.  They lost their worldly possessions when their houses were looted.  Some victims received some very limited financial assistance from Unilever (a flat rate of around £80 or the equivalent of one month’s wages) when they returned to the plantation, which was a small fraction of the loss of wages or possessions they had suffered.  Those who did not return received nothing.  Some were provided with maize, the cost of which was then deducted from their salary.  Many of those who were injured sought medical treatment while they were absent from the Plantation, for which they had to pay themselves.  Little support has been available to those who returned to the plantation. They have no knowledge of any “retraining”, although some victims were put on lighter duties.
 
The Claimants state in their letter: “It is not right that Unilever has said that it helped us when we know that it is not true… If it is possible, let us come and talk to you about what happened and how we have been treated.  We will tell you the truth…”

Unilever Plc has argued that it has no real involvement with or legal responsibility for the human rights failings of its Kenyan subsidiary, UTKL.

The Claimants assert that this position is at odds with Unilever’s human rights due diligence obligations under the United Nations Guiding Principles which extends to all subsidiaries within a group and which states in clear terms:

A human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights. (Commentary of Guiding Principle 26)

The Claimants also contend that the UNGPs state in clear terms that victims of human rights abuses should not be denied access to effective remedy. Specifically, access to effective remedy should not be denied because of “…the way in which legal responsibility is attributed among members of a corporate group under domestic criminal and civil laws (which) facilitates the avoidance of appropriate accountability.”; and that this is specifically the case “…where claimants face a denial of justice in a host State and cannot access home State courts regardless of the merits of the claims.

The Claimants assert that Unilever has breached these principles by relying on its corporate structure to resist their claims for remedy in the English courts, in the knowledge that there is a real risk that they will not be able to obtain substantial justice in the Kenyan courts.

The Claimants argue that this fundamentally calls into question whether the UNGPs are in reality being respected by Unilever or whether their adherence to the UNGPs evaporates when faced with actual victims of human rights abuses.