Disputes with tradespeople – What to do
HomeForce helps ensure that disputes with tradespeople are a rare thing. However, it would be very optimistic to think that they never occur.
When a dispute with a HomeForce accredited tradesperson does occur we offer a free mediation service.
In this article we have tried to outline how disputes should be handled within the frame work of Scottish Law. This applies not just to HomeForce tradespeople but for a dispute with any tradesperson.
The Legal Basics
When asking a service provider – any service provider, not just a tradesperson – to carry out work you are entering into a contract. In Scottish Law this is the case even if nothing at all is in writing.
A contract means that there are obligations on both / all involved parties, not just the tradesperson / service provider, that are governed by a legal framework.
The Tradespersons’ Obligations
A tradesperson’s obligations are framed primarily by consumer protection laws but also by the agreed description of the work and their terms of business.
In summary, consumer protection laws are:
- Tradespeople should carry out work with reasonable care and skill. Materials should be fit for purpose.
- They will repeat or fix the service if it is not carried out with reasonable care and skill or give money back.
- They will charge a reasonable amount for the service provided.
- They will carry out the work within a reasonable time if no specific timeframe is agreed upfront.
(NOTE: – Many tradespeople publicise “All work Guaranteed”. Usually this amounts to little more than what is enshrined in consumer protection law. A true guarantee sits over and above these laws; essentially it requires a separate document in order for it to be effective.)
Customer / Consumer Obligations
It is important to appreciate that, in the eyes of the law, customers also have obligations when they employ service providers. If a dispute with a tradesperson arises the consumer too must be reasonable in the eyes of the law. Consumers should not fall into the trap of thinking that contracts with tradespeople are all one way. Customers’ responsibilities are usually framed in the following areas:
- The description of the work to be done and materials to be used.
- This could be on a written quote or estimate (read about the difference here), an email, a text or simply a verbal agreement – not recommended.
- A customer has a reasonable duty of care (Caveat Emptor) to ensure the description of the work and materials meet their requirements. They should also fulfil any conditions for the provision of service. (Ensure clarity on who is providing materials. Check what, if any, preparatory work is needed)
- The terms of business of the tradesperson.
- The tradesperson’s terms are saying “I will carry out this work for you on condition that you adhere to these terms”.
- The terms cannot be unreasonable or contravene consumer laws.
- A tradesperson must draw attention to their terms but it is not necessary for a customer to sign something for the terms to be enforceable (i.e. a contract to be in place).
- Consumer rights laws.
- If consumers prevent tradespeople from adhering to their obligations or the terms the tradesperson stipulates then the consumer can be deemed to have breached the contract. This can result in negative consequences for the consumer (see below).
What is “Reasonable”?
The terms “reasonable” and “unreasonable” are frequently used in Consumer Rights laws, and law in general.
What is “reasonable” is open to interpretation and will vary by circumstances and individual. Gaining a legal definition of “reasonable” for an individual situation can be costly and time consuming. We’d suggest that it’s “reasonable” to want to avoid going down legal channels.
- The tradesperson is no longer obliged to meet their side of the contract.
- Action against the customer could be taken by the tradesperson.
- A consumers right to have work fixed or entitlement to a discount may be forfeited.
- The consumer is in a weaker position if the dispute ends up in court.
What might constitute a breach of contract by a consumer?
- Refusing access to rectify issues or refusing access at a reasonable time.
- Preventing, in some other way, the opportunity for the tradesperson to fix issues.
- Withholding full or part payment without agreement.
- It might help with negotiations but may be breaching a tradespersons’ terms and so be negating the contract
- A tradesperson may legislate in their terms for this by imposing late payment fees
- If successfully taken to court by the tradesperson it can affect consumers Credit Ratings
- Employing other tradesperson to rectify work without agreement.
- The tradesperson will still legally be able to claim for their full contract fee.
- Penalising the tradesperson for a perceived offence that is not within an agreement. For example if work takes longer than anticipated or the tradesperson doesn’t turn up at an agreed time.
- A completion deadline or penalties can be agreed upfront but if they are not this would be a breach of contract.
- Make full payment and not raise a complaint within seven days. Not so much a breach of contract but and acceptance of its’ completion.
What do HomeForce recommend if a dispute with a tradesperson arises?
- Maintain a dialogue with the tradesperson, what ever the situation.
- Try not to let emotion come into conversations. Be objective and deal with facts and how to resolve them, not “I said, he said”
- Clearly explain the problem and suggest ways in which you would be happy for it to be resolved.The onus isn’t just on the tradesperson to provide a solution. Remember, it’s a two way contract.
- Avoid getting bogged down in niggles (for example they turned up ten minutes late) deal with resolving the problem.
- Accept that the tradesperson may see things differently and have alternative suggestions.
- Get things down in writing (Email’s NOT Text or Whatsapp).
- Agree a realistic and reasonable timeframe for the resolution to be completed and penalties if it is not.
- Don’t waste time getting the opinion of other tradespeople. One tradesperson’s opinion does not carry more weight than another in the eyes of the law.
- Getting quotes from other tradespeople can be helpful for negotiating discounts. However:
- If a tradesperson knows they are quoting in such circumstances they may decline or ask for payment to quote.
- As everyone knows, different tradespeople will put a different price on the same job. The original tradesperson is not obligated to discount the amount based on one other tradespersons price.
- Check your home insurance policy to see if it covers you for disputes with tradespeople.
- If a “new fault” develops when a tradesperson is working in your property it is often best left to insurance (either yours or the tradespersons) to resolve. The tradesperson is NOT automatically liable especially for something he could not “reasonably” foresee. For example a pipe connection that comes loose when a plumber is adding new pipes elsewhere.
- If you believe a tradesperson has deliberately caused damage or acted in a negligent or dishonest way report them to trading standards and any bodies they are members of (For example Gas Safe, Federation of Master builders etc.).
How can you avoid disputes with tradespeople in the first place?
- Do a little research yourself about the work you’d like done. While a little knowledge can be a dangerous thing it can also help you ask valid questions and understand why a tradesperson is charging what he’s charging and doing it the way he’s suggesting. Search on our Knowledge base
- Read and fully understand the terms of a contract before proceeding with work.
- Ask for and keep everything in writing.
- Don’t pay full costs up front. Agree a payment schedule (which may include some up front payments) but never the full amount before work starts.
- Don’t pay cash. Yes, plenty of legitimate tradespeople do ask for and take cash payments. However, research shows that disputes are far more likely to arise when tradespeople demand cash payment. If the tradesperson isn’t honest with HMRC why would they be honest with you
- Read THIS ARTICLE