Sometimes with the best will in the world we are prevented from delivering on our promises due to circumstances that are wholly outside of our control. Force majeure clauses are used by businesses to protect them when such unforeseeable circumstances, such as delays due to adverse weather conditions, prevent them from fulfilling a contract.
The question we are often asked at the Ombudsman is: how are such matters dealt with in consumer contracts?
The Consumer Rights Act 2015 states that services must be carried out within a reasonable time. But what does this mean when these services are delayed?
Delays caused by inclement weather or events such as strikes at international ports have impacts that may not have been foreseen when the contract was entered into. Guidance from the Competition and Markets Authority (CMA) indicates that it is not always fair to exclude the impact of such events from a trader’s dealings with consumers where contract performance is delayed as a result.
The guidance outlines that only in certain circumstances may such exclusions be fair, namely:
- the event is genuinely outside of the trader’s control – it is good practice to include examples;
- the trader takes reasonable steps to mitigate the delay;
- if there is a risk of a substantial delay, the consumer is given a penalty-free option to cancel and receive any monies they have paid back.
The Consumer Rights Act 2015 further provides that services must be carried out using reasonable skill and care. There are many examples that are often cited as events outside of a trader’s control, where it could be argued the impact could be mitigated by using this reasonable care and skill. For example, it is not unforeseeable that road travel in winter months may be subject to delays if roads become impassable due to weather conditions. Customer Service processes and clear, timely messaging can and should be in place to mitigate the impact of this and inform the consumer as to what will happen if such events arise, for example the goods will be taken into storage.
Remember, although the delays may be caused by events out of the trader’s control, they are not the consumer’s fault either.
It will probably be unfair for traders to use a blanket term within their terms & conditions stating that delays are always outside of the control of the trader and to pass to the consumer all cost and risk in respect of these. This also applies to clauses that protect the trader from all delays and limit or provide the consumer will no redress in these circumstances. Phrases like “every effort will be made to” are similarly valueless.
Consumers rely on traders with experience within the removals sector. Therefore, the trader should be able to provide consumers with information about contingencies and the likely cost of these as part of their pre-contract information. This will enable the consumer to make an informed decision before they enter into the contract.
Top-Tips for Communicating with Consumers
Legalities aside, clear messaging provides a customer service solution to these events and the Ombudsman has several top tips for communicating with consumers:
- Prepare before you communicate: know what this issue is, how it was caused and what action is required to deal with it; rehearse the ‘what-ifs’ and pre-empt the consumer’s queries.
- Don’t make excuses, take ownership: explain the situation and let the consumer know what you can do to help alleviate it.
- Keep the consumer informed: let the consumer know as soon as you are able and give regular updates so that they don’t have to chase you.
- Don’t make promises you can’t keep; Do keep promises you have made: avoid promising an outcome you can’t control, but given a realistic timescale for your next update and stick to it.
- Give options, where possible: If you can give the consumer some alternatives to consider, you will empower them and put the consumer back in control.
The Furniture & Home Improvement Ombudsman and Dispute Resolution Ombudsman provides training on all aspects of the consumer journey, including consumer law and customer service best practice.