Unit 2 Assignment 4: Legal
In this assignment, I will be discussing several legal aspects from key legislations set in place by the government to protect me as a business owner, my staff and consumers and the general public alike. The legislations we will be focusing on is the Health and Safety legislation, contract law and consumer protection legislation, we will also briefly discuss the Sales of Goods Act and the Consumer Rights act which replaced the Sales of Goods Act on a consumer level. I will also be recording and uploading a video to YouTube to discuss the legal entity my business would operate under, the advantages and disadvantages and the reasons why I have chosen this entity. That video can be found here: https://www.youtube.com/watch?v=XHWs1ywiVD8&feature=youtu.be
First, we will talk about health and safety. Health and Safety has a huge impact in everyday life for every business and consumer alike, it is due to this legislation that we no longer see so many shelves getting stacked during opening hours as we would previous to the legislation being put in place. The legislation is intended “to ensure, as far as is reasonably practicable, the health, safety and welfare” of all visitors to your business premises or work location, whether your business is a supermarket with a single, physical location or if you run a landscape design business where you will work mostly on private property. If at any point an injury occurs due to the fault of an operative at work or for any fault, risk or hazard that the business has not reasonably managed then the business is liable for any injury caused; it is important to ensure businesses are fully protected with relevant insurance products as this will mitigate the risk of high legal expenses.
The law requires business owners to take reasonable steps to reduce risks and prevent hazards and should an injury occur or the act is otherwise breached, the courts will look at several factors such as whether or not the cost to reduce the risk or prevent the hazard was grossly disproportionate to the amount of risk presented. Another factor taken into account is the risk to personal safety when it comes to dealing with the risk of a hazard or whether or not the hazard was present and preventable at the time when risk assessments were conducted. For example, a precariously placed boxed on top of a 3 metre shelf may be impractical to be moved if there are no step ladders available meaning the only way to reduce the risk is to physically climb the shelves which could cause them to fall and crush the person trying to remove the hazard. The practical steps to take would be to prevent public access to the area where the hazard is present.
Similarly, if the hazard is easy to remove, such as wires across the floor presenting a trip hazard, if somebody tripped and no reasonable steps were taken to prevent them tripping, such as moving the wires, then it is logical to conclude that the business would be liable for this.
My business, In Front Advertising, would have to be particularly careful in heavily pedestrianised areas, such as the city centre, where risk of collision would be greatly increased due to my advertising vessel being rather long. I would mitigate this risk by using hi-visibility strips and clear warnings that the vehicle takes wide turns and that caution should be taken when turning. It would also help to have action cameras installed to ensure no frivolous lawsuits occur as a result of people deliberately entering blind spots with the intention of me colliding with them for the purposes of personal injury claims. I would also require, by law, to document any accidents or injuries and I will do this by recording them properly in an injury book. More information on Health and Safety can be found here: http://www.hse.gov.uk/pubns/hsc13.pdf
Another example of Health and Safety at work and how breaching health and safety legislation can affect a business can be found with First Bus, I boarded a bus in 2016 with a backpack weighing 20kg on my back, I showed my pass and the driver pulled off, the weight on my back coupled with the motion of the bus projected me forward causing my right shoulder to collide with the hand rail rather forcibly, it caused an injury which left me unable to post the leaflets in my bag for several days which caused me to fall behind on my customer’s order, this caused the order to be fulfilled late and as a result, I felt it was only fair to refund part of the payment given to me for the delay in delivery. Because section 7(a) of the Health and Safety at Work Act 1974 states an employee is “to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work…” As a result of the driver’s actions, I suffered an injury. So I reported this to First and requested they reimburse me for the partial refund I gave to my customer, I had made a mistake of not properly documenting the customer’s order and so they refused, I asked instead to be compensated for my injury, initially, I did not want anything for the injury itself, I just didn’t want to be left out of pocket as a result of their driver’s failure to ensure I was holding on to something. I know First drivers are trained to ensure passengers who are disabled, with children or encumbered by luggage are safely positioned before pulling off. My last correspondence with First was with them explaining to me that they refuse liability and their reasons as to why, I have argued their points and given them seven days to respond and change their position on the matter, failure to do so will result in me progressing with a no win no fee personal injury claim through Irwin Mitchel. After the seven day deadline, Transportation Claims Ltd have failed to respond and so I have brought the claim to Irwin Mitchel, this is important for the future of my business because if it is found that the bus company are not liable for my injury, then I will have to think of a safer way for my distributors to travel with such a heavy load on their back; perhaps we can mitigate the risk of injury by making a policy that distributors only carry a certain amount of weight in their backpacks, if a distributor breaches this policy and is injured as a result, the business will not be liable for any injury they sustain as a result of their ignorance.
A few months prior to starting the college course, my landlord’s contracted worker left a copper pipe at the bottom of my stairs in my block of flats, the lights were off in the communal walkway and I slipped on the pipe and injured my back, I have the right to claim for my injury due to their breach of health and safety whereby their contracted worker did not take reasonable care to ensure the area was free from hazards, we were not informed as residents that work was going to be carried out either. These two examples demonstrate how easy it is for an operative to be negligible. I do not believe for one moment that the bus driver or the Asra (my landlord) contracted worker deliberately went out of their way to cause injury to anybody; thankfully and hopefully, they should be covered by public liability insurance, I am in discussions with Transportation Claims Ltd who are First Busses’ insurers who, as I mentioned, have currently refused liability.
Health and safety will have a huge impact on my business, both for my employees and self-employed staff and also for the general public. It would be disastrous if my bag strap snapped and my leaflets landed on a ladies foot leaving her out of work, I would be responsible for covering her loss of earnings and compensating her for her injury, with that being said, I would mitigate this by ensuring I have public liability in place in case of accidental injury. Another issue I will have is with my bicycle billboard, I would have to take wide turns as a result of the length of the trailer which could increase the risk of collision, especially in any blind spots around corners. I would mitigate this by ensuring proper lighting and reflectors are used, along with warning signs and possibly dash-cam cameras installed on the trailer to protect against any frivolous claims made against me where members of the public could potentially deliberately injure themselves. Alongside this, we would be required by law to ensure we had an accident book to record any accidents and similarly, we must also undertake risk assessments (also a legal requirement) to minimise hazards, whenever an accident takes place, it is vital that we record the accident and also cross reference any injuries or accidents with our risk assessments to see how we could better avoid the same accidents in future and to also see if anything more could have been done to prevent the accident from happening in the first place.
Next, we will look at contract law and how it will affect my business. A contract is a voluntary agreement between two or more parties and is enforceable by law, not criminal law (unless where the contract is fraudulent or otherwise could insight another to commit a crime) but instead civil law meaning you cannot go to prison for breaching a contract unless the contract itself is criminally illegal (such as the contracts used in the Ponzi Scheme, whereby they promised high returns which came from other people joining the scheme whilst those lower in the “pyramid” didn’t see much money if any at all, it was deemed a pyramid scheme due to their being no tangible product for sale). For a contract to be legally binding, certain criteria has to be met, these include:
However, in a business contract, intention is inferred. To put this into perspective, if I had a contract with the Samworth Brothers to provide the ingredients that I have agreed to use to make sandwiches that I would sell on the market and instead I simply resold the ingredients or sold the sandwiches to retailers, I would be in breach of the contract as I would have gone against the original intention. A business contract is a contract which has the purpose of being used in order to make a profit, if you were to break the contract by selling the sandwiches elsewhere or using the ingredients for other purposes, as Samworth Brothers also make Sandwiches for the likes of Tesco and Ginsters, if I were to sell my sandwiches to these companies, I could have a negative impact on Samworth Brothers’ own income. Samworth Brothers would not take me to court if I made a huge amount of profit from selling my sandwiches on the market because we agreed to this but if I made a huge amount of profit selling the sandwiches elsewhere then Samworth Brothers can make a claim for some or all of the profit earned, plus compensation for any damages to their own financials.
If someone breaches a contract, it is up to the court to decide whether or not to award damages or other compensation to the party who did not breach the contract. Sometimes, there are exit clauses and clauses to explain the consequences of the breach, in these cases, it is up to the judge to decide whether these clauses are fair, also. A judge would also take into account the reasons the contract were breached amongst many other things before deciding on an outcome of a claim.
Contract law will have a huge impact on my business for two reasons, it will be absolutely important for us to have in writing how many leaflets will be delivered or how long we will advertise their business for, the deadlines for campaign completion and the amount that will be paid for the services I offer so that, firstly, we have proper documentation of orders (as I have learned since my injury on the First Bus) and also, in case there are ever any issues whereby the customer feels I have not adhered to the contract adequately and in which case, there will be physical evidence if needed in court.
More information on contract law can be found here: http://www.a4id.org/wp-content/uploads/2016/10/A4ID-english-contract-law-at-a-glance.pdf
Next, we will talk about consumer protection legislation. This is a huge subject to cover and I will explain the most important aspects of this legislation. First, however, I will mention the fact that the Consumer Rights Act of 2015 replaced the Sales of Goods Act 1979 on a consumer level only and the Sales of Goods Acts only refers to business to business sales. The Consumer Rights Act of 2015 is the amended act for business to consumer sales. The Consumer Rights Act covers the quality of a product, returning, replacement or repair of goods, your rights in regards to digital content and also delivery rights, included is also your rights when receiving a service. The quality of a product is defined as a product being fit for purpose, as described and of satisfactory quality. If you buy a new pair of boots which are clearly well worn, it will not be as described even though the boots may be fit for purpose and of a satisfactory quality, though saying that, the quality would be diminished if they were well worn so, there is that…
Under the consumer rights act, you also have the right to reject the product within 30 days if it is found to be faulty or develops a fault, is unsafe or otherwise of unsatisfactory quality. This is not to be confused with distance selling regulations which define a period of 14 days where a customer can return goods bought online, over the phone or via mail order within 14 days of receipt for any reason at all. The 30 day right to reject is only applicable for items you purchase that turn out to be not of satisfactory quality, this protection is especially useful for those who buy clothing but do not try them on in-store changing rooms. In regards to digital products, the right to a refund isn’t given even if the item develops a fault, instead it should be replaced or repaired. Companies like Alphabet who give customers an option to pay for some apps on their Google Play Store will give a refund for apps that are uninstalled (where a refund is also requested via the app store) within 7 days, this is not a legal requirement and is instead a gesture of goodwill whereby the refund can be refused at any time for any reason and can also be reversed. What isn’t immediately clear is if a product is purely digital but entirely miss-sold, can a person claim a full refund then? If we look at Payment Protection Insurance, which is a non-physical financial product as opposed to a digital product, many people were misinformed and therefore miss-sold this insurance and those who were miss-sold this insurance were given the legal right to a refund years after the sale took place so surely the same should apply for digital products that were miss-sold? With that being said, miss-selling a product and a product developing a fault after purchase are completely different factors and should not be mistaken.
The consumer rights act also encompasses the Financial Conduct Authority guidelines in regards to financial products, including lenders adhering to the responsible lender’s code.
Another key thing of note is when a consumer discovers a fault within the first 6 months, it is to be assumed the fault was there since the time of purchase unless the retailer can prove otherwise, if they cannot prove otherwise then the customer is immediately entitled to have the product repaired and if this fails, the customer can reject the goods for a full refund. Similarly, the retailer cannot reduce the refund with the exception of motor vehicle sales whereby the value of the refund will depreciate in line with the depreciation of the value of the vehicle after the first 30 days. A customer, if they want to keep the goods, can request a partial refund but the retailer can refuse this and request the item back in exchange for a full refund only. You have 6 years to make a claim to the small claims court if a retailer refuses to give you refund in line with the consumer rights act and you can seek legal advice from the citizen’s advice bureau. The consumer rights act will not have an impact on my business as I will only be dealing with business to business sales. The Supply of Goods and Services Act does, however, apply to me.
Of course, my business does not provide any physical products at the moment, so the previous points regarding the consumer rights act doesn’t apply to me, however, if we ever started printing marketing materials for our customers, then the previous point would certainly apply. I do however provide a service to fellow businesses and therefore, the Supply of Goods and Services Act of 1982 does apply to me (however, the Consumer Rights Act of 2015 is the act I should refer to if I were providing a service to consumers, like the Sales of Goods Act, the Supply of Goods and Services Act was replaced by the Consumer Rights Act on a consumer level, according to Which).
We will focus on the supply of services whilst we discuss the supply of goods and services act and discuss the supply of goods where appropriate, this act states that, similar to the Sales of Goods and Consumer Rights acts, that a service must be fit for purpose, as described and of satisfactory quality.
I worked in a hair salon in the past and the first lady’s hair I’d ever cut, I left an entire inch step between the bottom layer and top layer of her hair, it looked terrible and being so young, at the time I was just sixteen years old, I was petrified to confess my mistake; I curled the ends so she couldn’t tell and she left the shop. Unsurprisingly, she never returned to the salon but in line with the Supply of Goods and Services Act, she was well within her rights to come back to the salon to demand corrective work be carried out at no cost to herself. I cannot say I blame her for not returning for the corrective work, but in my defence, I was still training. Unlike the sale of goods, however, most people won’t be entitled to a full refund of a service unless the workmanship was extremely poor, in the case of the lady at the salon, she’d have been entitled to a full refund. Otherwise, service providers can refuse a full refund and may offer a partial refund (depending on the quality of the work) or to provide corrective work free of charge (for example, if a painter and decorator left a patch of wall unpainted, then corrective work would be justified however, if the painter and decorator demolished a wall he was being asked to paint, then of course, the customer would be entitled to a full refund). Simply put, up until the 1st October 2015, the Supply of Goods and Services Act of 1982 covers all work carried out by businesses that provide a trade, that could be; builders, mechanics, dry cleaners and covers work carried out within a business or a person’s home, like a landscape designer or gardener, now however, if a service is carried out on behalf of a consumer or if a consumer purchases an item the acts that would apply to these in the past are now replaced by the Consumer Rights Act of 2015.
In conclusion, it is vital that we understand the legislations discussed in this assignment fully, the reason for this is that any misunderstanding of any points mentioned in this assignment will have a direct, negative impact on my business. If I fail to carry out risk assessments or record accidents and injuries accurately then I will almost certainly be liable for any person who claims my business or my employees caused injury. Without carrying out a risk assessment, I will automatically be liable unless I can prove the accident did not happen. Similarly, for a consumer who slips or trips or otherwise suffers accidents, they should request their injury be logged properly as this will assist in any personal injury claim they may or may not make. The accident book plays a vital role as it allows both parties’ legal counsel to see what caused the accident, where the accident took place and any injuries that occurred (important for cross referencing medical records from the injured as frivolous claims are not uncommon such as a person exaggerating their injury). The final point I will make is that The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations of 1995 (RIDDOR) is a legislation that sets out the statutory duties of employers and businesses to carry out risk assessments and record injuries, failure to do so automatically places those being claimed against on a back foot in the sense that if you breach RIDDOR, the courts will only have the evidence provided by the claimant (their word and any medical evidence) that the incident took place and no evidence from the defendant, of course, there are some exceptions to this rule, it would be rather foolish to not carry out a risk assessment but a court will overlook this if you can prove the person wasn’t injured, for example if you claimed you slipped in ASDA but CCTV shows you did not so much as stumble, the claim would be awarded in the defendant’s favour. Similarly, if a risk assessment was carried out and the accident was not recorded, this can be the defendant’s golden ticket to refuse liability and in which case, any personal injury claim could fail to be taken further than litigation. In the above personal examples where myself, as a consumer, suffered injury as a result of a businesses’ employees or contractors, I reported the incidents straight away via telephone to my landlord and First Bus respectively before I sought medical treatment, I knew that the longer I did not report the injuries to the companies concerned would have an impact on whether or not those companies admit liability, I am finding though, that even if one does report the incident to the company concerned, they may still refuse liability and in which case, the claim should be progressed to a claims court so a consumer can claim what they are legally entitled to for their personal injury.
Reference:
(All above links)
http://www.legislation.gov.uk/ukpga/1979/54 Sale of Goods Act
http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted Consumer Rights Act
http://www.legislation.gov.uk/ukpga/1987/43 Consumer Protection Act
https://www.gov.uk/consumer-protection-rights Consumer Rights
http://www.which.co.uk/consumer-rights/regulation Consumer Rights
http://www.which.co.uk/consumer-rights/regulation Consumer Regulations in regards to various business practices
http://www.bbc.co.uk/schools/gcsebitesize/business/marketing/marketingmixrev3.shtml BBC Bitesize
http://www.bbc.co.uk/programmes/articles/3zR6PS2LXwbV3sY2MT9PPjF/sale-of-goods-act-1979-as-amended