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Talking Business: Are you prepared legally for Black Friday?

Black Friday: it’s here again and here to stay. Iain Connor of Pinsent Masons offers some legal lessons that can be learned from last year’s experience

Whether it was online or offline, the legal lessons all revolved around matching supply with demand and managing consumer expectations. Here are some of the challenges retailers faced, and the actions they should take.

Challenge Physical stores struggled to cope with the volume of customers, with Tesco, Currys and Asda all in the news for failing to manage effectively the queues outside their stores and with scenes of anti-social behaviour making the headlines in print media and on television. While the retailers did not cause the breach of the peace, they were accused of failing to adequately manage access to their stores which raised not only public order issues but wider health and safety concerns. 

Action Retailers should carry out a health and safety assessment and ensure security teams and sales staff are properly trained.

Challenge  Online, websites crashed that again affected Tesco, with Argos also in the news for all the wrong reasons. With demand surging anything up to 500%, retailers need to ensure their IT systems are scalable and resilient with all their back-up server capacity on tap to avoid disappointment. Consumers have a legal right to complain if retailers advertise stock without adequately explaining its availability, and if an online offer is taken out by a systems failure, retailers could face claims.

Action Retailers need to get their IT plan in place and ensure it is sufficiently robust to withstand what is effectively a “denial of service” attack – ie a massive spike in web-traffic outside the normal parameters.

Challenge Finally, get the logistics right. Whether it is online or offline, how are retailers going to fulfill orders? It is likely that usual service levels around delivery and returns will be stretched to breaking point and so consider whether special terms and conditions need to apply.

Action Review standard terms and conditions to give extra time for delivery and dealing with returns and refunds.

Iain Connor is intellectual property partner at Pinsent Masons

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