Virtual Business Home Working and the High Street

With an eye on our last update about the necessities of the virtual shop window for your business, this week’s update catches up with the Office for National Statistics view on the changing social picture as the high street starts to wake up, home working and a couple of factors to bear in mind to make sure your online processes work, once a potential client/customer decides to trade with you.

Firstly, the latest 19 June COVID-19 update from the Office for National Statistics again makes for interesting reading.

The headlines are:

  • Over 9 in 10 adults (92%) in Great Britain have left their home this week – the same proportion as last week; and of these, almost 1 in 5 (18%) said they had visited somewhere that was crowded. The largest increase in reasons for leaving the home this week is travelling to work up to 29% compared with 26% last week, reflecting the change in guidance and the easing of the stay at home measures across Great Britain.
  • Of those adults who said they were in employment, almost 8 in 10 (79%) said they had worked this week, either by working at home or travelling to work, an increase from 7 in 10 (70%) last week.
  • A greater proportion of those who had worked in the past seven days did so from home, with 49% saying they had either exclusively worked from home or had worked from home alongside travelling to work; an increase from 41% last week.
  • 4 in 10 adults (40%) reported that they had used face coverings outside of their home in the past week, an increase on last week (30%).
  • Of those adults who had used public transport in the past seven days, 62% had worn a face covering when travelling on public transport – an increase from 45% last week.
  • Just over 1 in 5 (21%) adults with children of school age reported that they had been asked to send their children back to school. Two-thirds (67%) of these said that their children were now attending school some or all of the time.”

The changing nature of work and how it is carried out is something that jumps out from the above – as the UK government starts looking to ease lockdown restrictions, there are indications that it is thinking about giving employees the right to work from home as part of their return to work package. The German government is also considering introducing similar legislation, so it may be a trend we see grow in Europe, if not globally.

We have seen over the past few weeks that businesses that have traditionally been resistant to remote working have had to put in place measures to survive. We think that as these organisations begin to encourage employees back in the workplace, there will be a proportion of the workforce that will be reluctant to return. Dealing with reluctant returners is a complex issue, but a mandatory obligation to enable remote working may very well change the fundamental working practices of entire sectors, and accelerate home working at an exponential rate. It will certainly be interesting to see what world governments do in this area.

The second point to highlight is around the closure of the high street starting to come to an end. While the dominance of buying online may recede slightly, the above still demonstrates that it is still vitally important to ensure you have a properly set up online gateway to your business with the right processes and structures behind it.

The following questions have been posted to us as part of this and we hope the guidance on them is useful.

  Can you put your T&C’s in a link in an email to the customer and would they be valid?

The starting point would be looking at the matter and in particular:

  • How the terms and conditions detract from the rights of the other party.
  • How e-mail link is highlighted or signaled to the other party.
  • Whether or not one of the parties is trading as a consumer.
  • The value of the contract under review.

Case law is starting to show that the courts are becoming more comfortable with website links as a way of bringing material to the attention of consumers.

Generally speaking then, if terms and conditions “available on request” can be incorporated into a contract in one set of circumstances, as in this case, there is a good chance that a court would hold that a link to website terms would also be effective in many situations.  However the big takeaway here is to always use clear language to incorporate terms of business.

We feel it could be risky for there to just be a link on an e-mail – we think there should at least be words along the lines of “All business is subject to our standard terms and conditions” and something which makes the link obvious.

Bear in mind though that different factors and issues arise  for consumer sales. Recent case law has held in this context that providing information to consumers about their rights under the Distance Selling Directive via a link to a website does not meet the requirement that consumers must receive the relevant information in a “durable medium”.

If in doubt, make sure that you provide your T&C’s explicitly and fully prior to a contract being agreed.

What are the rules about how a contract is created via emails?

Recent case law has reminded us all that even a simple exchange of emails is capable of creating binding legal relations, which is a pressing issue given the amount of homeworking at the moment.

In a recent case, while the buyer had policies covering the negotiation of purchase contracts, the relevant employee of the buyer did not make the seller aware of those policies and therefore, on the facts the seller was then entitled to assume that the buyer’s employee had the necessary authority to negotiate terms of trade and that he intended to bind the buyer.

The facts were that the seller emailed the buyer in asking for confirmation that the buyer was committing to a minimum yearly quantity of products over a 12 month period. The buyer’ employee replied to the email writing ‘Please go ahead’ and the first delivery of products took place.

The court held that the buyer’s employee was held out as the individual authorised by the buyer to discuss and agree terms and trading, and there was no evidence that a limitation on the buyer’s ability to enter into such an agreement was explicitly expressed to the seller in the correspondence or otherwise.

Courts seem to be willing and able to hold an employer accountable for the representations and promises made through email correspondence by their employees. Such exchanges can override internal policies if the employee does not make the other party aware of those policies, and the negotiations are not considered in accordance with the standard business terms or practices of the relevant industry.

It is really important to both set up and follow the right internal processes for employees to enter into agreements on behalf of a company. Ultimately it is the responsibility of the company to ensure that employees adhere to the policies put in place and understand the ramifications of not doing so.

We offer bespoke advice and support both for revising terms of use for existing sites as well as keeping business terms and conditions up to date and COVID aware.

Please drop me an email or message if you need any further details.

Stay safe and well.