Significant litigation addressing gender-based violence and harassment (GBVH) in overseas operations is increasingly being brought and heard before UK courts. These cases are predominantly within the agricultural sector in East Africa. However, recent reports on the prevalence of GBVH in the garment and footwear industry indicate that it may be a foreseeable risk in this sector, too. Companies are advised to perform enhanced due diligence to prevent their supply chains from being linked to GBVH.
Legislative context
- Once the EU Corporate Sustainability Due Diligence Directive (CSDD) is adopted and implemented in EU Member States, it is likely that companies will need to focus on GBVH as a key risk within their own operations and subsidiaries and at every level of their supply chains. This legislation is in line with the ILO’s Convention on Violence and Harassment (2019), which to date has been ratified by 31 countries.
Significant litigation and reporting
- Several cases have been filed by workers against subsidiaries or their UK-headquartered parent companies operating in the East African (primarily Kenyan) agriculture sector.
- The alleged specific acts include sexual assault, rape, severe physical violence, coercion and discrimination, often at the hands of security guards employed by the producer (Community v Del Monte, Communities v Camellia), or by male supervisors abusing their position of power in relation to female workers under their supervision (Workers v Lujeri (2021)).
- In one notable recent example, physical and sexual violence against more than 130 workers and community members is alleged to have occurred over at least a three-year period, resulting in five deaths as well as serious injuries in connection with a plantation in Kenya (Community v Del Monte).
- Two recent cases have resulted in settlements. While the total financial compensation is generally confidential in such settlements (Workers v Lujeri), reports indicate that in one case this amounted to around £4.6 million distributed among 85 individual claimants (Communities v Camellia (2021).
- This settlement also included non-financial remedies to promote better working conditions and measures to prevent similar circumstances from arising in the future.
- Other cases are currently ongoing. One company is selling its Kenyan operations, probably at least partly due to negative press regarding GBVH allegations (Workers v James Finlay Ltd (2021)). One case has not yet been filed in court, but the company has been notified of the allegations and given time to respond (Communities v Del Monte (2023).
- While most of the cases monitored have been in the agricultural sector, GBVH may also be found in other sectors, including the garment and footwear industry. The latter has frequently been the focus of reporting on this issue, such as publications by IndustriALL (March 2022) and Solidarity Center (June 2023).
- The ILO Better Work programme recently published its assessment of initiatives (July 2023), which recognises improved awareness of GBVH and reporting mechanisms in several major garment-producing countries, although significant work remains to be done.
Implications
- Based on our analysis, GBVH-related cases are being brought with increasing frequency before UK courts, which are now more willing to hear such cases.
- Although the majority of current cases concern the agricultural sector, garment and footwear companies are also open to litigation, given the widespread occurrence of GBVH reported in the sector. It would be difficult for companies to argue that they were unaware of the issue.
- While the lawsuits themselves raise reputational and financial risks for companies, media and public scrutiny of these issues often requires an urgent response by companies even before a case comes to court. A recently released BBC documentary revealing widespread GBVH at several tea producers in Kenya highlighted the prevalence of the issue throughout the sector and the need for companies operating there to take proactive steps to address these risks.
- Once the EU Corporate Sustainability Due Diligence Directive (CSDD) is adopted and implemented in EU Member States and further complementary legislation targeting gender-based violence comes into force, it will become particularly pertinent for companies to conduct thorough due diligence to mitigate the risk of GBVH in their own operations and supply chains.