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Out-Law Analysis 2 min. read

Retailers should heed legal lessons as 'Black Friday' and 'Cyber Monday' approach, says expert

FOCUS: Black Friday sales hit the headlines for all the wrong reasons last year, but retailers can avoid a repeat of the problems by effectively managing consumer expectations.

The Friday following Thanksgiving in the US has become the busiest shopping day of the year, with many retailers opening early and offering promotional sales. Over the past few years UK retailers have followed suit, and both offline and online outlets now run special one-day promotions to attract Christmas shoppers.

Last year, more UK retailers ran Black Friday promotions than ever before – but some were unprepared for high levels of demand, with police called out to stores to deal with reports of crowd control issues and even assaults. Online, Cyber Monday follows hot on the heels of Black Friday and websites were found equally wanting both on the Friday and the Monday.

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 that they faced, along with some actions they should take before this year's events on 27 and 30 November.

Issues for physical stores

Traditional retail stores struggled to cope with the volume of customers. Retailers made the news for failing to manage effectively the queues outside their stores, and scenes of anti-social behaviour made headlines in print media and on television. 

While retailers did not cause the breach of the peace, they were accused of failing to adequately manage access to their stores – raising not only public order issues, but wider health and safety concerns.

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

Issues online

Last year, many retailers' websites struggled to cope with demand. Some crashed, while others put queuing systems in place to restrict access to their sites. With demand surging by anything up to 500%, retailers need to ensure that their IT systems are scalable and resilient, with all their back-up server capacity on tap to avoid both consumer and commercial 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 also face claims.

Action: Retailers need to get their IT plans in place and ensure that they are sufficiently robust to withstand what is effectively a 'denial of service' attack - that is, a massive spike in web traffic, outside the normal parameters.

Logistics issues

Finally, it is important to get the logistics right. Whether offline or online, retailers must consider how they are going to fulfil an increased number of orders.

It is likely that usual service levels around delivery and returns will be stretched to breaking point, so consider whether special terms and conditions need to apply to sales made on Black Friday and Cyber Monday.

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

Iain Connor is a retail and e-commerce expert at Pinsent Masons, the law firm behind Out-Law.com.

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