21 Aug Kenyan Workers File Complaint Against Unilever with UN Human Rights Bodies
[Julianne Hughes-Jennett is a partner in Quinn Emanuel’s London office and the head of Quinn Emanuel’s Business and Human Rights Group. Laila Hamzi is a senior associate in Quinn Emanuel’s London office. Her practice focuses on international arbitration, public international law and business and human rights. Ram Mashru is an associate in Quinn Emanuel’s London office. His practice focuses on international arbitration and commercial litigation.]
On 30 July 2020 a group of 218 current and former Kenyan tea workers (“Complainants”) filed a complaint against Unilever to UN human rights bodies for Unilever’s alleged failure to respect international human rights following 2007 post-election violence at the Kericho tea plantation in Kenya. The tea planation is run by Unilever Plc’s local operating subsidiary Unilever Tea Kenya Limited (“UTKL”).
In 2007, some 20,0000 people worked on the Kericho tea plantation. Those employees, together with their relatives, lived on the plantation, which came to house some 100,000 people. Around 30-50% of UTKL’s employees belonged to the Kisii tribe, a minority tribal group.
The Kenyan presidential election of 27 December 2007 spawned significant tribal tensions and resulted in widespread violence in which 1,333 people were killed. During this period, armed mobs from the Kalenjin and Luo tribes invaded the Kericho tea plantation and targeted individuals from other tribal groups. The armed mobs committed murder, rape, other violent assaults, including against the Complainants, seven of whom died as a result.
English Court Proceedings
In 2015, the Complainants filed a claim against Unilever Plc and UTKL in the English Courts for failure to put in place adequate crisis-management plans to protect them the against post-election violence.
The Complainants argued that Unilever Plc owed a common law duty of care which required it to take “all reasonable steps to ensure that [the Complainants] did not suffer personal injury, damage to property or economic loss due to the foreseeable risk of ethnic violence on the Plantation particularly during election periods”. The duty was said to arise from Unilever’s assumption of responsibility “for the health safety and security of employees” of UKTL, demonstrated by Unilever Plc’s high degree of direction and supervision of UKTL’s risk assessment, health and safety, and crisis management policies.
As employees or residents of the Kericho tea plantation, the Complainants also alleged that UKTL owed “a duty to take reasonable care for their health and safety given those relationships and its knowledge of the high risk of violence and attacks on Kisii residents on the Plantation in the period immediately before and after the election”.
Both claims were struck out in 2016. At first instance, it was held that the applicable criteria for imposing a duty of care – whether (i) the damage was foreseeable; (ii) there was a relationship of sufficient proximity to give rise to a duty of care; and (iii) it was fair, just and reasonable for the duty to be imposed – had not been satisfied. Although the Court held that there was a relationship of sufficient proximity, it found that both the claims regarding the foreseeability of harm – that it was foreseeable “that law and order would break down generally, and police would fail to protect [the Complainants] when it did break down” – and the imposition of a duty were “bound to fail”. The Court further held that the claim against UKTL did not have real prospects of success.
The Complainants’ subsequent appeal to the UK Court of Appeal was dismissed on jurisdictional grounds. Following a cross appeal by Unilever Plc, the Court of Appeal reversed the finding that there was sufficient proximity. The Court of Appeal further declined to address issues of foreseeability and whether it was fair, just and reasonable to impose a duty of care. The Court observed that any trial would have to take place in Kenya and that, in those circumstances, it would be “far better” to “leave issues of foreseeability and what [is] fair, just and reasonable in terms of imposition of duties of care regarding events in Kenya in 2007 to the Kenyan courts, which are obviously more familiar with Kenyan society”.
On 17 July 2019, the UK Supreme Court rejected the Complainants’ application for permission to appeal on the basis that the claim did not raise a point of law of general public importance as the relevant principles had been decided in the earlier decision in Lungowe & others v Vedanta Resources plc and another  UKSC 20, in which, conversely, the Supreme Court had accepted jurisdiction over Vedanta Resources Plc and its Zambian subsidiary on the basis that the claimants could show a good arguable case that Vedanta Resources Plc had sufficiently intervened in its subsidiary’s management so as to owe a duty of care to the claimants.
Complaint to the UN Working Group and Special Rapporteur
On 30 July 2020, the Complainants filed a complaint with the UN Working Group on Business and Human Rights (“UN Working Group”)and the UN Special Rapporteur on Extreme Poverty and Human Rights (together the “UN Special Procedures”) asserting that Unilever has breached the UN Guiding Principles on Business and Human Rights (“UNGPs”). Unilever endorsed the UNGPs in 2011 and claims that they underpin its corporate practices.
Under UN Guiding Principle 22, businesses are required to provide remedies where they have caused or contributed to adverse human rights impacts. The UN Working Group examined the issue of effective remedies in its 2017 report to the UN General Assembly, and observed that remedial mechanisms should be responsive to the diverse experiences and expectations of rights holders.
The report concluded that rights holders should be central to the remedy process, and that affected rights holders should be able to claim a “bouquet of remedies” – i.e., a range of remedies depending upon varied circumstances, including the nature of the abuses and the personal preferences of rights holders – without fear of victimisation.
The UN Special Procedures complaint alleges three breaches of the UNGPs:
- Unilever placed the victims at significant risk of attack on the plantation and has not since provided adequate redress or assistance.
- After the attacks, Unilever failed to provide appropriate assistance and unilaterally ceased to pay salaries for a six-month period, after sending the workers home, which further exacerbated the harm.
- Unilever sought to block access to a remedy in the civil damages claim before the English Courts in 2016. Unilever is said to have hidden behind its corporate structure to impede the claims by insisting that it was not liable for failings by its Kenyan subsidiary, in the knowledge that claims could not be brought in Kenya due to the risk of ethnic violence, judicial corruption, and the lack of financial means.
Notably, the complaint does not ask the UN Special Procedures to consider whether Unilever failed to protect the residents of the tea plantation. Instead, it highlights Unilever’s responsibility under the UNGPs to (i) remediate any adverse human rights impacts to which it has “contributed”; and (ii) mitigate any adverse impacts which are “directly linked” to its enterprise. The complaint therefore asks the UN Special Procedures to determine:
- Whether Unilever has a responsibility to provide remediation/redress to the victims. The victims contend that Unilever contributed to the adverse human rights impacts they suffered and, therefore, Unilever is required to provide remediation/redress pursuant to Guiding Principles 13, 15, 19 and 22; and
- Whether Unilever’s actions to block any prospect of judicial remedy in England in the knowledge that no judicial remedy was possible in Kenya, including its reliance on its corporate structure, represents a breach of Guiding Principles 13, 15, 17, 19, and 22 read in conjunction with Guiding Principle 26.
The Complainants have further invited the UN Special Procedures to call on Unilever to provide effective remedies and issue a declaration that Unilever breached the UNGPs.
As part of its mandate the UN Working Group may intervene directly with states and businesses in response to allegations that have been brought to its attention. This process involves sending a letter to the states or business enterprises concerned to inform them of the allegation and the applicable international human rights norms and standards, in particular the concepts, obligations, responsibilities and expectations under the UNGPs. The UN Working Group requests a response within 60 days of the date of its communication, which is then made public.
The complaint highlights the creativity with which victims of corporate human rights violations are exploiting the various tools at their disposal to hold multinationals to account.
The OECD national contact point grievance mechanism is one example of a non-binding process, frequently used by affected individuals and NGOs, to address the social and environmental impacts caused by multinationals whilst also drawing attention to corporate behaviour. The UN Special Procedures is a further such example, through which aggrieved parties can attempt to secure remedies and expose the adverse rights impacts of corporate practices. It remains to be seen, however, whether the intervention of the UN Special Procedures in the present case will yield a satisfactory remedy.
A noteworthy and novel aspect of the complaint is the allegation that Unilever breached Guiding Principles 13, 15, 19 and 22, when read in conjunction with Guiding Principle 26, by using its corporate structure to block a judicial remedy in England in the knowledge that no alternative jurisdiction was available. This innovative assertion draws into question the compliance of otherwise legitimate civil defence strategies (including reliance on notions of corporate separateness and the doctrine of forum non conveniens) with the UNGPs.
While Guiding Principle 26 applies to states, the Complainants assert that it is informative for construing alleged breaches of Guiding Principles 13, 15, 19 and 22. They do so on the basis that Guiding Principle 26 specifically provides that access to an 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 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 claim”.
Guiding Principles 13, 15 and 19 are concerned with addressing and mitigating the adverse rights impacts to which an enterprise has contributed. Importantly, the ability to address or mitigate human rights impacts is not exclusively dependant on access to judicial remedies. While judicial remedies are an important component, appropriate remediation under the UNGPs can be achieved through an array of non-judicial and operational grievance mechanisms. Accordingly, provided corporate structures are not used to deny wholesale access to effective remedies, the use of legal defence strategies by businesses to avoid civil liability will not necessarily amount to a breach of Guiding Principles 13, 15 or 19.
Guiding Principle 22 is distinguishable, however, as it requires remediation of adverse human rights impacts to which an enterprise has contributed. Importantly, the commentary to Guiding Principle 22 explicitly states that “[s]ome situations, in particular where crimes are alleged, typically will require cooperation with judicial mechanisms”. By analogy, cooperation could also said to be required in the context of civil claims against the enterprise concerned. However, this would be a controversial proposition where a legitimate basis to challenge jurisdiction exists, as it would in itself appear to be contrary to the rule of law to suggest that a corporation could not exercise that legitimate right.
It remains to be seen whether the UN Special Procedures will take the opportunity to clarify the relationship between conventional and otherwise legitimate corporate defence strategies and compliance with the UNGPs. Until then, and subject to further clarification from domestic courts on the availability of claims for human rights impacts, it is likely that aggrieved parties will continue to pursue innovative approaches for business and human rights complaints.
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