Train operators often get a bad press for cancelling their train services - not their competitions. So Abellio East Midlands Ltd, which runs East Midlands Railways, must feel particularly aggrieved by their recent upheld ruling from the ASA.
Abellio ran a competition in February this year inviting the public to put forward their creative ideas to “Build Back Better”. It was essentially a call for inspiration on how to make rail travel happier - surely someone out there must know…? The lucky winner could not only see their idea put into action but would also earn themselves a cool £5,000 in prize money.
Unfortunately for commuters up and down the country, the promotion soon hit the buffers. Abellio pulled the competition due, it said, to financial pressure arising from COVID-19, but also because of a simple lack of good ideas. It said it had received a number of poor-quality entries that were either unsuitable for implementation or just not good enough. Perhaps too many people used the competition as an opportunity to have a moan about everything that’s wrong with today’s rail services rather than put forward genuine ideas for improving them. Or perhaps more worryingly, rail travel is simply beyond redemption…!
Whatever the case, one person complained to the ASA that the competition had been cancelled without awarding a prize, in breach of the CAP Code.
Unsurprisingly, the ASA agreed. But in keeping with that well-known public transport cliché (and clichés are clichés because they are true), just when you’re expecting one CAP Code breach to come along, six come along at once. Yes, the ASA upheld the complaint on the basis of no less than six rule breaches, which is quite unusual. Many of these came down to poor administration, but the key issue here was a failure to award the advertised prizes.
Abellio defended the decision to pull the plug and withhold the prize on the basis that the promotion terms and conditions allowed them to cancel the competition at any point. We haven’t seen the terms and conditions and therefore can’t comment on what they actually said. However, the ASA had seen them and it wasn’t convinced. It said “While we acknowledged that the terms and conditions of the promotion stated that they could cancel the competition, that did not absolve the advertiser of their obligation to comply with the Code”.
Interestingly, Rule 8.27 of the CAP Code states that “Withholding prizes… is justified only if participants have not met the qualifying criteria set out clearly in the rules of the promotion”.
However, CAP guidance on this (see here) goes further:
“Promoters may only justify withholding prizes if consumers have not met clear criteria set out in the promotional rules or if promoters have told consumers at the outset that insufficient entries or entries of insufficient quality will lead to the withholding of prizes.”
So it would seem that Abellio could potentially have cancelled the promotion due to the poor quality of entries if only this had been made crystal clear in its terms and conditions. Based on the information available, it seems that those terms may simply have stated that Abellio could cancel the promotion for any reason in its discretion, without making it clear in what circumstances this discretion would be exercised. However, you also get the feeling in this case that the ASA didn’t like the fact that at least part of the reason for cancelling was the promoter’s desire to make cutbacks during the pandemic - it said they should have anticipated the challenges that might arise.
Whenever running a prize competition that involves a subjective judging process, it would be a good idea to include wording that expressly allows prizes to be withheld where the quality of the entries is sub-standard. However, even then, this should only ever be an “emergency break glass” option, as it’s only likely to work (if at all) in very limited cut-and-dried cases. Just because a promoter doesn’t like the entries it receives, who is to say they are of insufficient quality? This is wide open to challenge and if the ASA gets involved it is likely to simply say that the promoter should have picked the least worst option!
Ultimately, if a business doesn’t want to pay experts to come up with viable business plans and instead chooses to run a public competition with a £5,000 prize as a means of generating ideas that it can then exploit, it can’t have its cake and eat it. It will generally have to do what it promised to do and pay out even if the ideas generated are not what it was hoping for. And we all remember Boaty McBoatface...
The fact that Abellio had not identified any ideas that they considered would be suitable to be implemented would not have prevented them from awarding the prize to the idea chosen to be the best by the judges, and the terms and conditions did not set out what would happen if none of the ideas could be implemented.