Duty of Care

I am having some interesting discussions with the ADR provider we now use, CISAS, over a particular aspect of the Communications Act and the service they offer.

Specifically, they can handle disputes in three specific areas, being the bills we have issued, the actual communications service we provide, and "customer service".

This last point is a tricky one for many reasons. I am querying it specifically with them, mainly because the Comms Act covers complaints made by prospective customers. After some discussion CISAS do agree that someone who is not actually buying service yet could only make a "customer service" complaint as they would have had no bill and not had a service to complain about.

So the issue of complaints over "customer service" needs more careful understanding. This is where it gets fun.

A&A have very explicit contract terms covering compensation for poor customer service. Specifically, there is none. A failure in customer service harms our reputation, but we don't compensate for it. We don't charge for the "customer service" aspect of what we provide either. CISAS did come up with examples, such as being rude to a customer or prospective customer, as being poor customer service.

Now, my view on this is simple. Customer service is all about making the customer happy. If a customer perceives that they have received poor customer service, then, by definition, they have. It does not matter who is "right". At the end of the day we would have failed to keep them happy. Customer service is all about perception of the customer.

So, if anyone claims to have received poor customer service then we will, of course, try and address that to improve what we do, and apologise, but fundamentally we have to agree that we did indeed provide poor customer service. So, there is no dispute. We would be 100% agreeing with the customer service complaint. And as CISAS only handle "disputes" there can be no case to take to CISAS if we agree all "customer service" complaints. I am awaiting CISAS's comments on that one.

Obviously someone may say "I had poor customer service, compensate me for that" to which the answer is "the contractually agreed compensation for poor customer service is zero". If they don't agree then we have a "contract dispute" and not a "customer service" dispute, which CISAS do not handle. Again, waiting for them to answer on that one.

But then I did ask more about this, and particularly covering prospective customers. CISAS said the arbitrator consider our "duty of care" when providing customer service. I asked where this comes from, and their answer surprised me. They say "This 'duty of care' derives from the Supply of Goods and Services Act 1982, section 13 of which places an obligation on all businesses that supply services to customers to "carry out the service with reasonable care and skill". This duty extends to the level of customer care provided. This duty also applies regardless of what the Terms and Conditions of a particular provider's contract states, and cannot be abrogated."

Well, that is a an odd one. For a start, that Act specifically relates to a contract for services having an implied term to carry out the service with reasonable care and skill, but for prospective customers we do not (yet) have a contract, so we have no obligation to use reasonable skill and care (yet). The obligation is specifically part of the contract. Waiting for an answer on that!

Also, the Act specifically allows implied terms to be explicitly agreed out of the contract. Now, the reason they comment on this duty of care not being abrogated is that we pointed out our terms say we will be rude and unhelpful. Well, the Act they quote allows us to vary those implied terms in our contract. We have asked about that too.

And finally, the Act covers there service we are contracting for, e.g. "broadband". It does not cover "customer service". Even if it did, "customer service" is not a communications service, so not covered by CISAS anyway.

I have to wonder what would happen if a separate company handled all marketing and pre-sales enquiries. One that does not sell communications services, just finalises the contract between the customer and A&A, and as such does not need to be a CISAS member. In that case any complaint from a prospective customer is rejected as the party giving the poor "customer service" would not be A&A and would not be a CISAS member.

So it sounds like they are struggling to find the basis for considering "customer service" issues at all, let alone the question of "customer service" for someone that is not a customer yet!

It makes sense - good customer service has never been a contract or compensation thing - it is a matter of reputation and good business. I reserve my right to be rude to a customer or prospective customer, even if I never expect to do so.

From what I can see we have no duty of care to provide "customer service". The Comms Act does mean we have to have a complaints procedure relating to customer services issues, which we do as we receive the complaint, agree it, apologise, and pay zero compensation.

But if CISAS cannot back up their claims that there is a "duty of care", then what then? Will they stop taking customer service complaints?

I'll post more when they have stopped wriggling. It is much more fun when we don't have an actual ADR complaint in progress!

Just to add - I am not saying we want to provide poor customer service - obviously. We try to provide the best customer service possible. What I am saying is I do not want someone to be able to blackmail me to the tune of over £300 because they say we offered poor customer service, especially if they are not even a customer! At the moment, that risk exists, and I feel strongly that it should not. It just makes no sense.


  1. Covering "poor customer service" in your contract is really covering yourself. I and everyone I know never had anything but the best possible customer service experience dealing with A&A.
    I regard you as the benchmark of customer service, efficient, friendly and competent :-)


  2. You should offer your pedant services on a contract basis. A&A Pedants services.

    You are right though, it is all quite daft.

  3. This goes back to "Rude ISP"
    State you are rude, then your customer service and duty of care is held to that standard (although as you point out in the article, could someone take you to ADR and get an award for us being polite, thus not adhering to your "customer service pledge"

    I wonder how the Supply of Goods and Services Act 1982, section 13 applies to any generic Rude$business Ltd?

    It could be like the Virgin or Easy family.... RudeMail, RudePhone, RudeBooks (could cause problems☺), RudeCider, RudeWines (oh wait, RudeWines already exist!) :)

    1. Indeed, but CISAS's comments suggest they think one cannot remove the "duty of care" by stating we will be rude? That is crazy, IMHO. I have challenged them on that and am waiting for their reply.

  4. So just to be clear.

    If someone had a beef with with the owner of an ISP e.g. Rupert Murdoch, they would be able to ring the ISP e.g.Sky or BeThere, about becoming a customer of their broadband, say no, then take them to ADR for poor customer service? Costing them £300 in the process, even before any sort of "guilt" (which as you say is ridiculous anyway since it is subjective) has been established?

    Interesting for groups whom want to engage in some sort of action I suppose (imagine an organised group of 1000 people could cost an ISP £300,000 just by making a phone call and filling in the ADR form!), but yes, not very fair on the ISP involved!

    1. They would need to follow the complaints procedure with the ISP/telco first, but if that was not "resolved", then they can go to ADR. If the customer is demanding compensation for their hassle then it will be unresolved (or paid), won't it. You may have to wait 8 weeks. I am trying to test this "from the other side" by trying to take giffgaff to ADR over a lack of anonymous call rejection, but I am already a customer. The Comms Act allows complaints from prospective customers.

    2. Just to add, as you may not be a customer - Orange / EE Landline also don't appear to offer Anonymous Call Rejection...

  5. "section 13 of which places an obligation on all businesses that supply services to customers to "carry out the service with reasonable care and skill"."

    As you point out, this is not close to accurate. Not having a contract - being a prospective customer, rather than a prospective customer - is fatal to the argument advanced here, since the mechanism for including this duty is as a term implied into the contract.

    Perhaps a different way of approaching the issue would be to ask CISAS to identify the contract into which the term is implied, in the case of a casual question by a supplier. A contract is a precise, not a nebulous thing: offer, acceptance, consideration and so on. Can they pinpoint when, exactly, each limb of the test was satisfied? What is the consideration flowing to AA here?

  6. Agreed - but Communications Act redefines "customer".

  7. How's about this as a scenario (and I'd not expect A&A to do this at all): Someone enquires about broadband on a phone line, tells ISP phone number etc, but doesn't get as far as agreeing to the contract.

    Someone in ISP mistakenly puts it through as an order to BT, who don't check anything and transfer the service from the old ISP to the new.

    Lots of people to blame, and technically not *customer* service, but presumably the Customer Service department would be involved in helping sort out the mess (on the practical basis that they do similar things for customers). That would be where the duty of care comes in.

    All theoretical, of course :)


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