Why failing to patch test could cost you £1,000s

In the hair and beauty industry, personal injury claims are on the rise. Changes in English law have meant that no win, no fee solicitors are now looking for a new client base to replace the downturn in whiplash claims.

With settlements for lash tint reactions averaging £12,000 and reaching as much as £35,000 for irritations caused by hair dye, this could prove catastrophic for salon owners or sole traders. 

Every good beauty therapist will have insurance to cover them if the worst was to happen, but failing to follow patch test procedures could invalidate your policy, leaving you to settle the claim yourself. If you’re a sole trader, this could put your personal assets, such as your home, at risk if you do not have the means to pay the injured party. 

When you receive training in the use of a product or treatment, the educator and manufacturer should advise if patch testing is necessary and how often it should be done. You should then check this against your insurance policy. Insurers have different requirements, which you must follow in order for your policy to be valid and for them to respond in the event of a claim. 

Home patch test requirements 

It’s becoming increasingly common for salons to post home patch test kits to clients rather than insisting on a patch test in-salon. But can you rely on your client to let you know if there was any reaction? How do you know if the client applied the patch test correctly and at least 24 hours before the treatment? 

Patch tests need to be applied to clean, dry skin to get an accurate result. For example, if your customer used body lotion prior to application, it could act as a barrier, giving a false negative result. Also, will the customer know what sort of reaction to look out for? Even the mildest reactions need further consideration. 

Check whether your insurance covers you if you didn’t apply the patch test yourself, as many are quite specific in saying that the therapist must do it. If the insurer you use and the manufacturer allow for the use of postal patch tests, that’s fine, just be cautious and read up on the terms and conditions. Some brands state you need to use their product, not a generic postal patch test, and going against the manufacturer’s instructions could void your policy. 

It’s also worth checking if the patch test uses the exact mixed ingredients as per the product that will be applied in salon or whether the ingredients have been left separate. Not all insurance policies are the same, so check with yours. Never assume because you’re using a well-known brand that every insurer will accept this method of patch testing. 

Disclaimers: what they cover 

When you ask a client to sign a disclaimer, you may believe they are signing away the right to take legal action against you for any injury following a treatment you’ve performed – because it was their choice to not have a patch test and take the risk. Unfortunately, this is not the case.

You would need to show that the contract had been negotiated and that the customer had understood what they were agreeing to. Your client is not a trained beauty therapist, so you can’t prove that they truly understood the risk involved in not having a patch test. 

How does the average person know how serious the reaction could be if they were allergic to the product? There have been cases of people losing their lives. A disclaimer seeking to avoid or limit your liability for anything that goes wrong is a waste of paper, the best it can do is put off a poorly informed customer who isn’t aware of their legal rights. 

With beauty injuries the current focus of the no-win-no-fee solicitors, their advertisements are screaming out that customers can still claim even if they signed a disclaimer. If one of your therapists acts unprofessionally in doing something that is against good practice, then a disclaimer form is an unfair contract for the client to sign and could not be used in a court of law. 

It means you would be found to have acted negligently and a court would rule in the injured party’s favour, where their claim for damages and injuries would have to be paid. If you’ve breached your policy terms and conditions by not patch testing then your insurer wouldn’t respond to the claim; you would have to meet the costs of defending the claim and settle it yourself. 

The importance of saying no 

The general public are more conscious of their rights and what businesses are expected to do to protect their customers. No business wants to be known as the beauty salon that cuts corners and doesn’t follow protocol because it prioritises money over customer safety. 

We also know people can build up a sensitivity to tints and dyes, so patch testing can’t prevent every claim. If you can show that you’ve acted professionally and patch tested as you should have then you will have a better defence, which could mean a claim settlement is significantly reduced or avoided altogether. 

The correct way to handle a client that refuses a patch test is to insist on the importance of testing for allergies. If the customer is not willing to comply then refuse to treat them. Yes, there’s a small risk that they will go elsewhere, but the impact on you and your business is small in comparison to what could happen if that person ended up making a claim