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With recent changes in English law and access to “no win no fee” solicitors being more readily accessible than ever, personal injury claims in the hair and beauty industry are on the rise....
With recent changes in English law and access to “no win no fee” solicitors being more readily accessible than ever, personal injury claims in the hair and beauty industry are on the rise. Solicitors are looking for a new client base to replace the downturn in whiplash claims. The average settlement for a lash tint gone wrong can be as much as £12,000. A bad reaction to hair dye can prove catastrophic for a small business or sole trader, costing almost three times as much (£35,000) on average. A lot of injuries can be avoided with a simple patch test and educating your customers about the importance of patch testing.
A minority of beauticians and hairdressers, take an “I needn’t worry, I’m insured” attitude towards patch testing. Of course, every good hairdresser/beautician has an insurance plan to cover them if the worst were to happen. Insurance policies state that it is imperative that the manufacturer’s instructions and your training is followed to the letter, with particular emphasis on a patch test being carried out by the therapist themselves. The failure to carry out a patch test could invalidate your cover, leaving you to settle the claim out of your own pocket. If you are a sole trader, this could put your personal assets, such as your home, at risk if you did not have the means to pay the injured party.
This depends on the treatments that you’re providing and the products that you’re using. During your training, your tutor should teach you about the importance of patch testing, when it is necessary to perform and how frequently it should be carried out, depending on the products and techniques. Always remember to check this advice against your insurance policy as different Insurers have different requirements, which you must follow in order for your insurance to cover any claims.
We know that customers can sometimes be difficult. They might even go as far as refusing a patch test. So, what should you do? There are some new products on the market that let you post a patch test to a customer, asking them to apply it on themselves. Few Insurance companies accept this method for a number of reasons, aside from relying on the customer to let you know if they had a reaction:
1. How could you possibly know if they applied the patch test at least 24 hours before the treatment and not the same morning?
Then there’s the issue of applying it correctly so that it returns an accurate result. A result that could be invalidated unless the patch test is applied to clean and dry skin. If the customer has used body lotion or any other moisturiser for example, it could act as a barrier between the skin and the product, giving a false negative result.
2. Even if the customer understands the importance of patch testing and therefore makes sure to carefully follow the instructions, you cannot be certain that they know what sort of reaction to look out for.
As a professional in the hair and beauty industry, you know that even a mild reaction such as redness to the skin (without burning or itching) needs to be looked into further, as it could be a precursor to something more serious, but your customer might shrug it off as insignificant because they want their treatment done.
3. You will also need to consider whether your insurance provider will cover any claims where the solution used for a patch test was not applied by yourself.
Most of the insurance policies are quite specific in their requirements and do ask for all of the pre- and aftercare services to be carried out by the therapist, so always make sure to check!
4. Some of the brands will not provide patch test samples for postage but will require you to use their products to carry one out, as opposed to a generic postal patch test.
If your product provider falls into this category and you go against the manufacturer’s instructions, you could be at risk of voiding your policy.
5. Has the patch test been mixed using the exact same ingredients as per the product that will be applied in the salon?
If the postal patch test provides ingredients separately as opposed to the exact mixed ingredients as per the product which will be used in the salon, this could mean the patch test is void and could invalidate your insurance cover.
As we’ve already mentioned, not all insurance policies are the same, so check with your own insurer for the specific requirements and don’t assume that because you’re using a well-known brand or other therapists use them regularly, your insurer will accept this method of patch testing.
So, what do you do? When asking a client to sign a disclaimer you might believe that your client is signing away the right to take legal action against you for any injury following a treatment that you have performed, as it was their choice to not have a patch test and take the risk. Unfortunately, this is not the case.
Patch testing for hair colour is a legal requirement under Section 3 of the Health and Safety at Work Act, and failure to perform patch tests has previously led to prosecution and extremely high fines.
In addition to this, you cannot exclude liability for death or personal injury in a consumer contract. This is laid down by statute. You would need to show that the contract had been negotiated and that the customer had understood the importance of patch testing, but decided against it anyway. As a trained beautician, you are expected to fully understand the risk that comes with bypassing the health & safety procedures, but you cannot ask the same of your customers. They have not had the same training or experience as you, so it is not possible for an average person to know how serious the reaction could be if they are allergic to the product.
With beauty injuries being the current focus of the ‘No Win No Fee’ solicitors, a disclaimer seeking to avoid or limit your liability for anything that goes wrong is simply a waste of paper. At best you might discourage a poorly informed customer who is not aware of their legal rights, but with the solicitors’ advertisements screaming out that a claim can still be made after a disclaimer was signed, it’s only sensible to look for other solutions.
The only correct way to handle a client who is refusing patch testing is to educate them on its importance. Explain that testing for allergies to the product you are using could potentially be life-saving. It is your responsibility to ensure that your customers are treated in line with what is required by law for your reputation, the livelihood of your business and the safety of your clients.
If that doesn’t work, refuse to treat them.
Most insurance policies will insist that you follow your training and manufacturer’s instructions, and if a client refuses to let you do this then you must refuse to carry out the treatment. Yes, there is a risk that the customer will go elsewhere. But the potential impact of a compensation claim that could be made against you and your business, if that person ended up being injured as a result of you not following the correct procedures, pales in comparison.
Even if you do not cause an injury, the general public is more and more conscious of their rights and what businesses are expected to do to protect their customers. Nobody wants to be known as a therapist who cuts corners and doesn’t follow protocol because getting the business is more important than the customer's safety. We see many claims where therapists and salons make comments on social media platforms about someone’s professional ability because they don’t patch test or ask about contra-indications.
We know people can build up a sensitivity to tints and dyes so patch testing can't prevent every claim, but if you can show that you have acted professionally and patch tested as you should have you will have a better defence, which could mean a claim settlement is significantly reduced or avoided altogether.
In summary, if a therapist behaves in a way that runs directly against what is considered to be good practice, their customers could try and sue. Any actions taken by the therapist that isn’t in line with industry requirements could be viewed as negligence and a court would rule in the injured party’s favour. If you have breached your policy terms and conditions by not patch testing then your policy would not respond to the claim and you would have to meet the costs of defending the claim, and ultimately, settle the claim yourself.
If you're looking to find cover to protect yourself from claims including hair dye reactions, Professional Beauty Direct offers comprehensive salon insurance, hairdressing insurance cover, and beauty therapy cover to keep your business safe.
5th July 2018
