BBC complaints framework Procedure no. 2: Fair trading complaints and appeals procedures May 2010 Contents Fair trading complaints and appeals process 2 Introduction 2 The complaints process 3 The appeals process 4 Annex A – BBC fair trading complaints and appeals process 8 8 Fair trading complaints and appeals process 1.1 This document provides guidance on how to complain if you feel the BBC has breached its fair trading obligations and outlines the process that will be followed. Introduction What is a fair trading complaint? 2.1 Since the launch of Radio Times in 1923, the BBC has engaged in commercial activities, with the explicit aim of supporting its public purposes. The principles by which the BBC undertakes commercial activity or interacts with the commercial market place are set out in the Trust’s Fair Trading Policy. 2.2 A fair trading complaint is a complaint about the way the BBC has interacted with commercial markets or conducted its commercial activities. A complaint can be about public service activity or the activities of the BBC’s commercial subsidiaries. Typically a complaint may arise from a perceived failure to comply with the BBC’s fair trading policy or competitive impact codes which you may like to consult if you are considering a complaint. These are available at: www.bbc.co.uk/bbctrust/framework/fair_trading.html 2.3 Possible grounds for making a fair trading complaint include any suggestion that the BBC has exploited its position as a publicly funded body to secure special advantage in commercial markets. For instance, this could include the suggestion that the BBC has used public funds (i.e. the licence fee) to subsidise commercial ventures, or that a BBC department has unduly favoured one of the BBC’s commercial subsidiaries over its competitors. 2.4 Please note that complaints about the editorial content of BBC programmes or other Public Services (such as bbc.co.uk) should be made through the Editorial Complaints Process (available at www.bbc.co.uk/complaints/). Complaints about the editorial content or standards of commercial BBC publications – such as books or magazines – should also be made via this route. The fair trading complaints and appeals framework 2.5 The BBC Executive is responsible in the first instance for considering all fair trading complaints. Fair trading complaints should be addressed to Controller, fair trading. 2.6 In order to assist it to comply with its fair trading obligations, the BBC’s Executive Board has established an executive fair trading committee (EFTC). One of its responsibilities is to consider fair trading complaints. To do this EFTC will appoint a complaints panel in relation to each complaint. The complaints panel will comprise a majority of non-executive directors. 2.7 The complaints panel will normally appoint the Controller, Fair Trading, as the case officer for investigating the complaint. The case officer shall present a report of his investigation to the complaints panel for its adjudication. 2.8 If the Chair of EFTC or Controller, Fair Trading believes there is a conflict of interest in the Controller, Fair Trading investigating a complaint, an alternative Case Officer shall be appointed. 2.9 The complaints procedure also provides a formal route for appeal. If you are dissatisfied with the finding of the complaints panel you may appeal to the BBC Trust. Individual appeals are administered by the Head of Finance and Compliance, a member of the Trust Unit. 2.10 The roles of the separate bodies are shown below. An Annex to this document also provides a summary of the overall complaints and appeals process. The complaints process How do I make a complaint? 3.1 If you wish to make a complaint, this should be done, usually in writing, to: Controller, Fair Trading Room 2222 BBC White City 201 Wood Lane London W12 7TS 3.2 To assist the investigation of your complaint, it would be helpful if you could include the following detail: (a) full details of your complaint and any supporting documentation (b) reference to relevant sections of the BBC’s fair trading policy or competitive impact codes which you think may have been breached (c) your contact details. 3.3 We can usually only accept written complaints. A certain level of detail is required in order to allow the Controller, Fair Trading to properly consider and investigate your complaint. If you telephone with a potential fair trading complaint you will usually be asked to put it in writing. If you are unable to put your complaint in writing, or have any other access issues, please contact BBC Information on 03700 100 222 / textphone 03700 100 212 for advice on how to make a complaint. What process will be followed in considering a complaint? 3.4 The Controller, Fair Trading will acknowledge your complaint within 10 working days of receipt. The acknowledgment will also explain the process to be followed. At this stage the Controller, Fair Trading may ask you to supply further information before the complaint can be fully investigated. The Controller, Fair Trading may reject vexatious or trivial complaints. Executive EFTC Complaints Panel 3.5 If you feel that you have information which is confidential, please contact the Controller, Fair Trading in the first instance to discuss. By agreement, the Controller, Fair Trading will not disclose confidential information that you supply to other members of the BBC’s Executive. 3.6 If your complaint relates primarily to issues of competition law (including state aid law) it may also be made directly to the relevant external authorities. The Office of Fair Trading or Ofcom are the relevant competition authorities in the UK whilst the European Commission is the appropriate authority to hear complaints relating to State Aid. 3.7 Once any additional information requested has been received from you, the investigation will continue and on completion a report will be provided to the complaints panel for adjudication. A response will normally be provided to you within 30 working days. If for any reason this timescale cannot be met, you will be informed of the reason for delay and how long the investigation will take. 3.8 Once the investigation is complete, and following adjudication by the complaints panel, the chair of the complaints panel will outline its findings to you: (a) if your complaint is upheld, the Controller, Fair Trading will instruct the division concerned to remedy any breaches and ensure that they are not repeated (b) if your complaint has not been upheld, the reasoning for this decision will be clearly explained. You will also be informed of your right to appeal to the BBC Trust. 3.9 The conclusions reached and actions taken in respect of fair trading complaints considered by the complaints panel will be published in the fair trading complaints bulletin, which can be found at: www.bbc.co.uk/info/policies/fairtrading_complaints What if I am dissatisfied with the reply? 3.10 If you are not satisfied with the conclusions of the complaints panel or the investigation, you can appeal to the BBC Trust. You have 20 working days following the BBC’s final response in which to appeal. (Exceptionally the BBC Trust may allow appeals within 40 working days of the BBC’s final response if the BBC Trust decides there is a good reason for the delay.) The appeals process Do I have grounds for an appeal? 4.1 The Trust will consider any appeal that meets the following criteria: (a) the complaint relates to an alleged breach of the Fair Trading Policy or Competitive Impact Codes by the BBC (b) the complaint has been considered through the full complaints process outlined above. How do I make an appeal? 4.2 If you have exhausted the Executive’s complaints processes, and if you are not satisfied with the outcome, you may appeal to the BBC Trust within 20 working days of the BBC Executive’s final response to your complaint. (Exceptionally the BBC Trust may allow appeals within 40 working days of the BBC’s final response if the BBC Trust decides there is a good reason for the delay.) 4.3 Appeals should be addressed, usually in writing, to: Head of Finance and Compliance (FT Appeal request), BBC Trust 180 Great Portland Street London W1W 5QZ 4.4 When making an appeal, you should include the following information: (a) a summary of your original complaint, including details of how the BBC has allegedly breached the Fair Trading Policy or Competitive Impact Codes (b) copies of any relevant correspondence with the BBC (c) the reasons why you are dissatisfied with the original complaints decision(s). 4.5 We can usually only accept written appeals. A certain level of detail is required in order to allow your appeal to be properly considered and investigated. If you telephone with a potential fair trading appeal you will usually be asked to put it in writing. If you are unable to put your appeal in writing, or have any other access issues, please contact the Trust Unit Enquiries Line on 03700 103 100/textphone 03700 100 212 for assistance. What process will be followed in considering an appeal? 4.6 Upon receipt of your appeal, the Head of Finance and Compliance will make an assessment of your case against the grounds for appeal, and respond to you within 10 working days. The Trust is the final arbiter if any question arises as to whether an appeal is for the Trust to determine or not. 4.7 The Trust is not able to determine appeals on alleged breaches of competition law. In such cases you will be informed of relevant external authorities who may be better suited to deal with the allegation and to whom you may complain. 4.8 A complaint may be referred back to the BBC Executive if it is felt that it has not had an appropriate opportunity to respond to the original complaint, for instance if there is significant new material in your appeal not in the original complaint. Vexatious or trivial appeals will be rejected. If your complaint does not meet the criteria, the reason(s) for this will be explained to you. 4.9 If the Trust can deal with your appeal, the process for considering your case will be outlined. Additional information may also be requested from you at this stage, and you will usually be asked to respond within 15 working days. This is important because information provided at this stage may be significant in deciding your appeal. 4.10 Having received any additional information, the Head of Finance and Compliancewill collate all the necessary material and begin an investigation of your appeal. Both you and the BBC Executive will be treated as separate parties to the appeal. During the investigation, additional information or advice may be requested or commissioned, either from you, the BBC Executive, or from external advisers. It will be ensured that any advice for the Trust is provided by advisors who are separate from, and independent of, any advisors providing advice in relation to that complaint to the Executive Board or the commercial arm. 4.11 Where appropriate, the Trust may share certain material (or a summary of it) that it receives, including any further investigation or advice, with both parties. It will not however share anything (i) of a commercially sensitive nature or (ii) which is provided to the Trust subject to restrictions on who it can be shown to without prior consent. In particular, the Trust will ensure that where any person who provides information to the Trust in connection with a fair trading complaint or appeal stipulates that the information must not come into the possession of: (a) any member of the Executive Board, or (b) any member of the BBC’s staff, other than a member of staff of the Trust Unit, the BBC always has in place arrangements to ensure that neither the Trust nor any member of staff of the Trust Unit discloses that information in circumstances that lead to a breach of that stipulation. 4.12 Where the Trust does share information in this way, you will usually be given an opportunity to comment on the proposed sharing of this material, and asked to respond within 10 working days. Obviously in such circumstances the normal timetable for considering your appeal will be extended by an equivalent amount. 4.13 Your appeal will be considered by the relevant sub-Committee of the BBC Trust (although, where the Trust considers an alternative and more appropriate process is available, the matter may be dealt with under such process at the Trust's discretion). The relevant sub-Committee of the Trust will aim to consider your case within 30 working days of the investigation opening, although this may take longer depending on the timing of meetings and responses from parties. The relevant sub-Committee of the Trust will then make its decision based on the material presented before it. 4.14 In exceptional cases, and where there are significant disputed facts which cannot be satisfactorily addressed by the process of investigation, the relevant sub- Committee of the Trust may call for oral evidence. In this event more time will be allowed for the appeal and you will be informed at least 20 working days in advance about the hearing and its format. 4.15 Following the meeting, the chair of the relevant sub-Committee of the Trust will write to you outlining the decision of the committee and explaining the reasoning. 4.16 The Trust is required to make clear what sanctions and other remedies it has the power to apply. In the case that your appeal is upheld, the potential sanctions available to the Trust include: (a) the Trust, or BBC Executive instructed by the Trust, will apologise to you in writing. In severe cases a public statement acknowledging fault could be issued (b) the Trust can instruct the Executive to cease, or alter, certain activities, or to amend guidelines, to prevent a recurrence of the breach (c) the Trust can refer concerns about the conduct of specific staff to the Director-General of the BBC, who would be asked to consider investigation and potential disciplinary proceedings against such individuals, in accordance with usual procedures and following normal employment law. 4.17 If your appeal is not upheld, a full explanation for the decision will be provided. Exceptionally, the PVFTC may defer an appeal and request further analysis if it feels there is insufficient evidence to make a judgment. 4.18 Details of all appeals and findings (excluding internal disciplinary matters) are published on the Trust’s website. Given the commercial sensitivity of some fair trading appeals, full disclosure of information may not always be appropriate, and you will be consulted if this may be relevant in your case. 4.19 The Executive compiles a quarterly fair trading bulletin, detailing fair trading complaints against the BBC, which it submits to the Trust. The handling of complaints at the BBC is also scrutinized by the Trust at the time of the Annual Report (May) and at mid-year (October/November). 4.20 The PVFTC is the final stage of the BBC’s fair trading complaints process. Proceed with appeal Annex A – BBC fair trading complaints and appeals process Complaint rejected Complaint upheld Satisfied Appeal upheld Complaint Sent to BBC Management (Controller, Fair Trading) Complaint acknowledged and EFTC Complaints Panel appoints case officer Complaint investigated and report to EFTC Complaints Panel for adjudication EFTC Complaints Panel consider report findings Complaints Panel decision Response to Actions prescribed Appeal to the Trust Head of Finance and Compliance assesses grounds for appeal Working days 10 Working days 30 End Not satisfied [up to 20 working days to appeal] Working days 30 Working days 30 (excluding any potential time for parties to comment on material) Appeal investigated Working days 30 COMPLAINTS(MANAGEMENT) APPEALS(TRUST) Text Box: Complaint rejected Text Box: Appeal upheld Version Date of publication Approved by the Trust 1.0 August 2008 22 May 2008 1.1 May 2010 18 February 2010 Summary of changes since previous version n/a This document has been updated to fit in the new protocol format and to fix minor typographical points and to make it clear how it sits with the BBC Trust protocol ‘E3 complaints framework’.