With the Brexit transition period due to expire at the end of this year, it has been confirmed that from 1 January 2021, UK based traders will no longer be able to use the EU’s online dispute resolution platform (ODR platform). Additionally, there will be changes to what information traders must provide to consumers in respect of alternative dispute resolution (ADR).
As well as informing consumers about ADR, traders are more generally required by law to handle consumer complaints in certain prescribed ways. It is not always clear when traders are obliged to act in a given way, and so this article aims to provide a broad overview of what is required from businesses when dealing with consumer complaints.
Telling consumers about ADR
The current position
Currently, EU Regulation No. 524/2013 (EU Regulation), and The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (ADR Regulations), require that:
- Where a trader is obliged by law, contract or membership of a trade association to use the services of an ADR entity/EU equivalent, the trader must include the name and address of this entity on their website or sales terms
- Where a dispute has arisen and the trader has exhausted its internal complaint handling procedure, it must inform the consumer of the name and website address of an ADR entity/EU equivalent that would be competent to deal with the complaint (albeit the trader does not need to engage with such ADR)
- Online traders must also provide consumers with an easily accessible electronic link to the ODR platform via a website or other electronic means
The position from 1 January 2021
Having formally left the EU on 31 January 2020, the UK is currently in a Brexit transition period (due to expire on 31 December 2020), in which the majority of EU law continues to apply as though the UK were still a member state. At the point the transition period ends, all EU law then in force will crystallise as a new body of "retained EU law". Statutory instruments created under powers conferred by the European Withdrawal Act 2018, will amend existing UK and retained EU law, to ensure there is a functioning statutory framework at the point the transition period comes to an end.
One such instrument - the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018 (2018 Regulations), disapplies the EU Regulation, meaning that online traders will no longer be required to provide consumers with a link to the ODR platform. Separately, the EU has confirmed that UK based traders will not be entitled to use the ODR platform at all.
Bullets 1 and 2 above will continue to apply to UK traders, but traders will no longer be able to offer consumers EU alternatives to UK based ADR entities.
Telling customers about your complaints policy
Generally, there is no requirement for traders to have a formal complaints policy. However, under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCRs) (which apply to traders unless an exception applies), and to the extent that the trader does have a formal complaints policy, or an informal way of dealing with complaints, they are obliged to inform the consumer of this prior to the contract being entered into. Depending on how the contract is to be entered into (e.g. on premises, online, over the phone etc.) there are various rules under the CCRs relating to how this information must be communicated to consumers.
Obligation not to make misleading acts or omissions
The Consumer Protection from Unfair Trading Regulations 2008 (CPUT) apply to all dealings with consumers, and require that traders do not make "misleading actions" or "misleading omissions". CPUT further provides that deceiving consumers about the main characteristics of any product constitutes a misleading action.
How a trader deals with complaints is expressly stated to be a main characteristic of a product. Therefore leaving out material information about complaints or providing it in a way that is unclear, could constitute a misleading omission or action under CPUT. For these purposes, material information would include information the trader is required to provide to consumers under statute, (e.g. the information referred to above under the CCRs). For example, if a trader told a consumer that all complaints would be handled within 7 days by the trader’s claims handling team, but in fact, the trader had no such team and was unable to deal with the request until a month had passed this could breach the CPUT.
If a trader is found to have carried out a misleading action or misleading omission under CPUT, this can give rise to both criminal and civil liability.
How to respond to complaints
Under the Provision of Services Regulations 2009 (2009 Regulations) (which apply to traders unless an exception applies), a trader must respond to consumer complaints "as quickly as possible" and use its "best efforts" to find a satisfactory solution to these complaints. The 2009 Regulations do not elaborate what constitutes “as quickly as possible” or “best efforts”, as this will vary depending on the nature of the individual complaint. However, guidance published by the Department for Business, Innovation and Skills (the predecessor to the Department for Business, Energy and Industrial Strategy) provides that traders should give consideration to:
- The nature and complexity of a specific case
- The means and ease by which the customer can be contacted
- Whether information is needed from a third party
- Any language issues
Conclusion
As traders prepare for the end of the Brexit transition period, thought should be given to the changes that will stem from the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018. In particular, traders should (a) ensure that terms and conditions have been updated to remove references to the European ODR platform, and (b) check internal processes so that a link the ODR platform/information about EU based ADR entities are not provided to consumers in the event of a dispute.
More generally, traders should review their complaints processes, to ensure that they are compliant with the requirements under the CCRs, PSRs and CPUT.
Nicola Broadhurst