Member Article

Where is my order? I’m sure most of us have asked this question many times and probably more so recently as the recent postal strikes have left customers waiting for delayed Christmas gifts to arrive.

The postal strikes have undoubtedly had a huge impact on businesses in the lead up to Christmas, especially given the dramatic increase in online sales, costing businesses money and time in navigating through customer queries, complaints and providing solutions. On top of this, there is a pressure for businesses to remain competitive and operate in an efficient way as after all, customers have choices to get the goods from elsewhere.

So what can traders do to manage these challenges?

Consumer’s rights under consumer laws

Firstly, it’s important to acknowledge that whether delivery delays are the result of postal strikes, courier issues or other circumstances, traders will generally remain on the hook for ensuring that goods are delivered to the consumer – they cannot simply blame the couriers for the delays or failed deliveries and leave consumers without their orders.

Under consumer laws, traders must deliver goods without undue delay and in any event within 30 days after the day the contract is formed. This deadline applies unless the trader has agreed a different deadline - longer or shorter - with the consumer before the contract was made. If they do not, consumers may be entitled to:

• end the contract immediately and the trader must refund the consumer payments they have made under the contract;
• set a new appropriate time for delivery and require the trader to deliver before the end of that period;
• end the contract if the new deadline is not met, in which case, like the above, the trader will have to reimburse all payments made under the contract to the consumer;
• cancel the order for any goods or reject goods that have been delivered and the trader will have to refund to the consumer all payments made under the contract in respect of those cancelled/rejected goods.

Managing risk

To manage this risk, traders could:

• consider setting out an appropriate estimated delivery date range in its terms and conditions and pre-contract information it provides to the consumer before the contract is made. The aim of this is to avoid setting a fixed delivery date which, if missed, could trigger the consumer’s statutory remedies as set out above;
• if the delays are foreseeable (i.e. planned postal strikes), notify consumers (e.g. by email exchange) of any changes to delivery dates and reschedule the delivery date, although it is essential that traders obtain the consumer’s express consent to the new deadline – they cannot vary the delivery date without the consumer’s consent. Even if a trader has missed a delivery deadline, they should notify the consumer promptly and seek to arrange a new date with their consent;
• consider including a term in its terms and conditions detailing ‘events outside our control’ (also known as a force majeure clause), although caution will need to be taken when using such terms as it could be considered unfair (and therefore void) if not used correctly. For example, it may be permissible for a trader to rely on such clause to excuse its liability for delayed delivery if: the delay is genuinely due to an event outside a trader’s control; they have taken reasonable steps to prevent/reduce the delay; and they give the consumer a penalty free right to end the contract if there is a risk of long delays.

Any attempts by a trader to mislead a consumer or restrict a consumer’s ability to exercise their statutory remedies is an unfair commercial practice and will not be enforceable.

The key takeaway here is that good communication with customers is essential as this will help avoid disputes.

A well informed customer is more likely to agree to new delivery deadlines and less likely to want to cancel their orders or end the contract. Businesses should, from the outset, put in place internal procedures and systems that enable them to communicate with customers efficiently and easily in these situations.  

 

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