Working for nothing....

[SmoothBoi]

I'm a personal trainer and a gym offered me a position whereby I work for them for 12 hours a week and in return for payment I can train their clients for 4 hours a week and keep the full training sessions money. They would "sell" my services to their clients but Iam not permitted to approach their clients direct.

 

So far after 2 months I've only recived 2 hours of clients from them after giving the gym over 64 hours of my time.

 

I now want to leave but they say I still need to give them another 4 weeks of work, although there is a written agreement between us that I can terminate with two weeks notice and if I don't they will put the solicitors onto me as the one member of the family is one so it costs them nothing to take me to court for breach of contract.

 

As I see it, they didn't keep to there side of the bargain by supplying me with the 4 hours of paid work a week. Can I legally ask for them to settle the excess hours @ the min wage rate?

[honeybee13]

Hello there and welcome to the forum. I think it would help the guys to advise you if you post the wording in your agreement about notice periods and payment. Leave out anything that might identify them or you.

 

My best, HB

[rebel11]

Hi SmoothBoi

 

Welcome to CAG

 

The guys will advise as soon as they are available.

[papasmurf1cx]

This is just bullying / scare tactics. Hand in your notice and go sick, no-one can get you to work for them if you don't want to.

[SarEl]

This is just bullying / scare tactics. Hand in your notice and go sick, no-one can get you to work for them if you don't want to.

 

Ermm - no it may not be, I am sorry to say. This isn't a contract of employment - the OP isn't an employee. This is a contract for service and operates in civil law, not employment law. As a result it would be unwise to entirely ignore any threat of legal action without knowing the full terms of the contract - the employer may indeed have grounds to sue and may do so. Nor does the national minimum wage apply.

[papasmurf1cx]

The legality is one thing which I am sure you are right about but I am looking at the proportionality of response the gym is threatening the OP with for essentially an extra 2 weeks working for them. In any case the OP has a counter argument which seems very reasonable if it came down to it.

 

All I am suggesting is that if the OP is sick because of the stress of working for no wages, what is the Gym management really going to do? Threatening the OP with 'relative' solicitor just seems OTT to me and, without denigrating the OP's problem in the slightest, it just seems to me to be a bit of a storm in a legal teacup. By all means he should post the terms and conditions, but what is the likely remedy to be??? I doubt many judges would award substantial damages even if the Gym was in the right which is not clear, or am I wrong in thinking this?

[sillygirl1]

You could of course report the Gym to Trading Standards, this sort of thing is frowned upon and shouldn't be encouraged.

[SmoothBoi]

scan0002.pdf

Thank you for all your help.

The agreement was signed by me (was given a red pen to sign it) on 24/10 but the company only got the witness and the director to sign it on 22/11 (in black)

[SarEl]

Regardless of what the contract says (yes, I have read it now) it is not a contract of employment, it is a contract for service. The minimum period of the agreement is four months and you have not served the four months. If you fail to abide by the terms of the contract you could be sued. It may be a bluff and they wouldn't really do it - but if this went to court then it would be a breach of contract. The contract does not stipulate that the company have provide you with clients, so they are not in breach. Your risk, but appalling as this contract is (what on earth possessed you to agree to it???) it is legally binding and if they choose to enforce it, the court may not like the terms, but they would have no choice but to uphold it. If you were to go sick, then they may back off, but I cannot guarantee that. And being sick would not change the legal position of the contract. You have to decide whether they mean what they say or not - and possibly make sure that you never sign anything as stupid as this again in the future.

[SmoothBoi]

Many thanks for the advice and a good lesson has been learnt,

[GymInMotion]

I was told that if a contract is not signed in black ink that it is not valid, especially if signed in red ink as stated above.

[helencb]

Ouch.

 

I work in the hospitality industry, and so we employ personal trainers in all our gyms, but as a regular employee. This seems to be a very one sided contract, unless the OP approached them, a tough lesson, but hopefully in the New Year, there will be more opportunity with people on a fitness kick to at least make the next two months pay....will they not discuss openly how it might work in a more commercial sense for both of you, i.e. some local marketing by yourself - as this is not a postion most reasonable companies would want to put a 'supplier' in...

[SarEl]

Don't ever buy anything from the person who told you this. A contract is vaild even if you don't sign it - the colour of the ink is irrelevant.

[Sidewinder]

That contract is a piece of work

[SmoothBoi]

I've approached the subject with them and stated that I'm working for nothing and that is not how the whole deal was sold to me. I suggested that I make up some posters to put up in the gym advertising my services and hopefully get some clients to put some food on my table. They once again informed me that I was forbidden to make any contact with their members or to give the members any contact details for me. The other problem which I was not told about before is that the owner is also a personal trainer and if there are enquiries about training the owner takes the clients.

[GymInMotion]

If I may just say that the scene set out above by smoothboi is the norm with small private gyms. My experience is that a private gym under 5 years old makes offers like this to new PTs which sounds good but all the gym wants out of it is free labour and not many have very honest intenions of helping the PT into the industry. I've found many of the gyms offering such offers inflate their membership numbers and make the picture very rosy and appealing and then take the new PT and put them on the "graveyard" shift.

unfortunately there are some operators who don't believe in giving anything to the industry but just rather taking as much as they can from it. Sadly another operator conned smoothboi.

[djgordyp]

Don't ever buy anything from the person who told you this. A contract is vaild even if you don't sign it - the colour of the ink is irrelevant.

 

How can a contract be valid if it's not signed? I knoe it is the case with emploment contracts that whe you have worked for a certain length of time you are deemed to have accepted the contract (unfortunaly)

 

BTW I have a contract with your name onn it that says you agree to pay me £50'000 by the first of February:lol:

[SarEl]

A contract is valid if both parties "enact" it. So in a contract for service, turning up at the gym and working, and being allowed to do so, etc., confirms the contract - just as a contract of employment is enacted by truning up for work and being allowed to work. People, including you, enter into contracts that are not written down or signed every day of the week. Shopping, for example, is a contract - you exchange money for goods and get contractual rights as a result.

 

That is not a contract - that is a promissary note and different laws apply!

[Bignick58]

Just a thought...

 

Reading the contract, it looks like a case of "gross misconduct" could get you out of the situation?

 

Or could they bring some other claim for doing that?

 

Nick.

[SmoothBoi]

Thanks SarEl for the clarification of that.

[SmoothBoi]

Well I tried for 2 weeks of not doing anything that was asked of me, but that didn't work at all. I've now been accused of standing on the treadmill and denting it,but that hasn't been misconduct...

[teaboy2]

I've only just come across this thread, and despite what others have said, i would be inclined to disagree with them on the legality/validity of the contract and i strongly inform you that their verbal offer of pay prior to your signing of the contract, followed by non performance of the offer is Fraudulent/Negligent Misrepresentation that induced you to sign the contract. Under contract law Misrepresention (also see Misrepresentation Act 1967) that induced you to sign the contract means the contract IS VOIDABLE. If so, you maybe entitled to claim for loss of earnings for potential earnings you would have made if they had prefrom their verbal offer that induced you to sign and/or for potential earnings you may have earnt eleswhere for the period in which you where under contract as a result of their misrepresentation that induced you to sign the contract.

 

So given that and the information below a quick free session with a solicitor is what i believe the best course of action is, if you are wanting out of the contract right now.

 

Also noted the contract does not give the date of commencement as it should do in section 2.2 instead where the date should be it is blank. So if thats the case, then i suspect the contract may be invalid, as it doesn't state when the contract began or was to begin, only that the minimum term of the contract is 4 months. So hows anyone to know when the contract came into force without a commencement date? as those four 4 months could start at any point between now and bloody judgement day.

 

Plus why would they need your national insurance number if your a freelancer, you are surely self employed and pay your own NI? They should only need your NI details if they were paying you. If it is that they are paying your national insurance for you, then as no mention is made in the contract, they have therefore agreed an implied term in which to pay the NI contributions, therefore invalidated there own "entire agreement" clause. So please give me some info on this and their reason for the NI number if they are not paying your contributions.

 

Below is some adivce and information from here on Free lance UK website. Some of the information may prove useful to you,

 

In this economic downturn, client companies and recruitment agencies are pursuing cost savings by, allegedly, verbally offering freelancers a certain pay rate only to downgrade that rate when the paperwork comes through. Freelancers want to know if clients/agents are legally permitted to renege on verbal pay promises, particularly if the freelancer rejected another role because it offered a lower rate that emerges as the higher rate once the agent’s or client’s downward revision is factored in. Contractors say they need to know their legal options when they make a business decision based on, or because of, their agent’s or client’s initial pay promise that ends up being broken.

 

As a freelancer, firstly consider:

 

•How sure are you of your ground?

 

•What is the difference between the amount you were paid, the amount you were offered and the amount you were offered on the contract you turned down? (if any)

 

•Is that figure substantial enough to warrant any action other than requiring future offers in writing from the agent/client? (since they have broken the implied term contract in regards to paying you it will be the total wage you would have earnt from any work you did for others, if you had not been working for your current employer)

 

•In the commercial world we live in, the phrase ‘because of their initial promise’ can be read more than one way.

 

What the law says:

 

Verbal agreements can be incorporated into a contract at any stage and can even form the contract in its entirety. The terms of a contract need not be written and it is for this reason that many contracts have what is known as an ‘entire agreement’ clause (Which in your contract is 17.1 of your contract) , ostensibly to restrict the terms of the contract to those signed and exclude oral representations.

Contracts by necessity are often interpreted by the courts as desirably flexible, in order to match the demands and nature of business people and the commercial world. There may be good reasons for variation. That said, unilateral variation of the terms of a contract or offer, whether written or oral, can create a breach of contract or invalidate the contract resulting from the offer, allowing non-performance or part-performance.

 

The other party has an obligation to honour their offer. You must mirror their offer with mirror image acceptance, fundamental to the law of contract. You were induced to enter the contract by a misrepresentation and therefore the contract is ‘voidable,’ (thought 17.2 states - No party shall rely on representation, which alledegly induced that party to enter into this agreement. Unless the representation is recorded therein. However the key word here is MISREPRESENTATION, which under contract law makes the contract voidable. So section 17.2 does not apply and can be ignored as the legal definition between Misrepresentation and Representation are two different things) and you can elect to rescind or affirm the contract. Damages may not be available unless the misrepresentation was made fraudulently or negligently, but may put you back into the position you would have been in had the tort not been committed.

 

What to do?

 

You could consider claiming a breach of contract. It is likely such a claim would be more successful against an agent than if you are dealing direct with a client as you may have more of a claim where you have an ongoing relationship. With a client it might be viewed that such statements were part of negotiation, and with an agent you may have an existing and ongoing contractual relationship. You may place more reliance in an offer from your agent. Equally the opposite may be true! This is subjective.

If you still have other options you could claim the contract is not valid. You may have a claim to damages, but be aware of your general duty to mitigate your loss. In the non-litigious world this equates to a marginally better hand in negotiation as you can point to the difference between the wages – if you had anything in writing to evidence the three contrasting offers. This not being the case you may have little to work with even if the damages are large, beyond your persuasive charm!

The costs of actually pursuing a claim may be prohibitive, but dependant on the sums involved, consider engaging a solicitor to write a robust letter.

 

 

 

 

Freelancer’s bind: I agreed, but then along came a better contract

 

Background

 

Like most businesses in this economic downturn, freelance consultants need to make the most of market opportunities. Freelancers want to know where they stand, legally, if they verbally accept an offer of work but subsequently decide they want to accept a higher-rate contract elsewhere, perhaps with or without a separate agent. Freelancers are asking what might happen if they went a step further and signed the first contract, and claim they were wrong to sign because of unforeseen personal or commercial reasons, in an attempt to free themselves up to take the better-paid alternative.

 

What the law says

 

Legally and morally speaking the answer to the first question is simple. A verbal agreement can form a binding contract. Practically speaking, read the answer to one of the other question posed here regarding verbal promises made by the other party.

In addition you may wish to consider whether you have formed a valid and binding contractual relationship. This is a case-by-case matter and one that it may be worth considering with an expert, but a contract in summary is typically formed by:

 

•Offer;

 

•Acceptance;

 

•Consideration on both sides; and

 

•Intention to create legal relations

 

The answer to the second of these questions is, as usual, dependent on the contract itself. More particularly, check whether the contract allows for its discharge in certain, or any, circumstances. If it does, consider carefully whether your situation can be made to fit the circumstances in which you are legally permitted to discharge your obligations by agreement or performance. And consider whether there is a penalty.

 

If it does not, it is largely legally irrelevant whether you have decided you could earn better elsewhere, or whether your dog has had puppies unexpectedly. If the other party to the contract wants performance, and contractually they have the right to performance, it is likely that you are legally bound to perform.

 

Many contracts contain what is known as a ‘force majeure’ clause. This applies where for unavoidable reasons one party is unable to meet their contractual obligations. However such clauses are not often used, and are unlikely to apply to a ‘better paid alternative ’ as they more typically relate to natural disasters and the like. The law has always favoured certainty in contracts, so when you sign you must typically honour the obligations (if not unduly onerous) to which you sign up to. And it must be said, generally rightly so.

 

What to do?

 

This means your only sensible and practical option, unless you are willing to defend a breach of contract action, and maybe earn a bad reputation, is to check out your options and the bottom-line thoroughly, before you commit yourself to a contract. And make it plain that you will only consider yourself engaged once you have it in writing.

 

Always try and leave a well-hidden get-out clause. It always helps to have a pre-drafted standard contract available at the negotiating stage and a loose grasp of what you are trying to avoid in their standard contract.

 

If it is unavoidable, thoroughly examine the contract you have signed, and check amongst else whether it is divisible, and you have reached the end of a stage, and check that it does not allow for assignment. Check minimum levels of performance and how performance may be provided. Consider working two jobs if necessary, or sub-contracting. (You could sub-contract another person to perform the work at the gym for you, however you may have to pay them for it, but it will free you from working at the gym so that you can workelse where and actually earn a wage)

 

Freelancer’s bind: I’m being pressured to become an employee

 

Background

 

In this economic downturn, client companies are pursuing cost savings by offering to take higher-wage freelancers on as employees on the basis that they will not be able to renew existing contracts when they expire. Freelancers suggest they find such offers detrimental to their status as an independent supplier, and wonder whether the offer would be perceived as signpost towards IR35, should they be unlucky enough to face a tax enquiry. Freelancers wonder if they can insert a clause into the contract prohibiting such offers of permanent, direct employment, or whether such a clause would bring them closer to an IR35 liability in the event HMRC investigates.

 

There is nothing you can do to stop your employer turning you into an employee if that is what you are. This may seem like a glib answer but whether you are classed as an employee or self-employed is not a simple decision. There are a number of factors that must be taken into consideration and there are no hard and fast rules. There are however a number of cases that we can look upon for guidance and also a number of assumptions as a result of these cases and guidance generally.

 

You would be classed as self employed if you run your own business and control what you do and when you do it. You would have several customers as opposed to just one, You use your own tools/ equipment, you engage other people to help you as and when you want at your own cost and expense.

 

In contrast, you would be classed as an employed person if you work for one person/ entity, if someone directs you as to how, when and where you should work, provides you with tools/ equipment, you are paid a set salary or wage and you have deductions taken out for PAYE , tax/ NI contributions. Also with regards to your work- the benefits and risks are borne by someone else.

 

As you can see it is not a decision made only by signing a contract of employment, as you may find that you are still classed by the Inland Revenue as an employee if an enquiry were to arise. The taxman has altered the law for a reason.

 

That said, signing or renegotiating any contract should be a free choice and a big change to your contractual position made without your consent is likely to be unlawful. The very first thing, as usual is to examine your existing contract. Check that you have not signed a term which allows a conversion under certain circumstances and check what those circumstances are. If you are unsure, ask a solicitor to look it over.

 

What the law says

 

If an investigation is undertaken into your tax situation, and your status as a self-employed contractor is not approved, the extra tax burden will fall on the employer as you are already paying your tax as self-employed. Having said that do watch out for any claw back provisions in any agreement that you have with the client/ employer. If you are covered by the IR35 law, matters changed a little last year. A case in point is Dragonfly Consultancy Ltd, where a £99,000 retrospective tax bill was applied. This case resulted in freelance contractors in similar situations reviewing their terms and status. Of course this article cannot substitute tailored advice and is not meant to.

If you are forced into accepting a contractual situation in which you are unhappy, presumably because of economic influence, you may argue that in court you would be able to resort to the doctrine of duress. It is a relatively late developer in English contract law, and much better recognised when it relates to physical rather than economic duress. Consideration is at the base of the existence of the doctrine of duress, i.e. if someone points a gun at you head and you sign a contract you have not provided any consideration for your signature. This is of academic interest, but in summary consideration does not need to be adequate so if you sign up (or allow a variation) to work for a year at one pound a month, you’ve still provided consideration so that a fully formed contract is created. In other words, your look-out. English contract law recognises inequality of bargaining power, undue influence and unconscionability but always remember that the law does not like venturing into the field of economics. You may also refuse direct employment on the basis that the change goes to the root of your contract and therefore the client is in breach and you are no longer obliged to fulfil your side of the contract. See part one of this series for more on this argument.

 

IR35 applies to situations where you are paid by an intermediary who is paid by the client. You are advised to seek help on these matters as they relate to the current financial year alone. If the intermediary is your limited company and you pay yourself in dividends the Inland Revenue has brought the legislation in for you, so you need to make sure you understand it.

 

What to do

 

•You must always make sure that a contract is favourable before signing;

•Draw up your own pro-forma before you go into negotiations;

•Ensure that you insert a clause which prevents unilateral decisions on employment status;

•Be aware what circumstances would indicate you would no longer be classed as self-employed –

 

speak to a specialist solicitor or accountant;

 

•If a clause does exists in your contract concerning employment status see a solicitor; and

•Be sure to get compensation (consideration) for the renegotiation and make sure you get a new

contract to suit. You may be able to dissuade the other party. •Indemnity - most contracts will contain a clause from the client stating that if the Inland Revenue

were to investigate the position and view the relationship and term this as an employer/ employee relationship then the freelancers would repay the tax/ NI deductions

 

FreelanceUK was advised by Izaz Ali, a director of Lawdit, a legal firm specialising in intellectual property, internet and technology law. Lawdit offer discounted agreements to Freelance Alliance members.

Note the above quoted information, all but the texts highlighed in red, was provided by IZAZ ALI a director of Lawdit. The text highlighted in red is simply my own personal opinion and interpretation of law, and by using such opinion as legal advice in legal matters - you agree that i am not liable should my opinion be wrong.

 

P.s. Forgot to mention that in order to sub-contract - Then according to section 17.4 you must get written consent from the your employer. Also as others have said, let this be a lesson to you and anyone else that works freelance and reading this. Next time insure their is no entire agreement clause and that all verbally implied terms are included as a term in the written contract prior to signing.

Edited January 16, 2011 by teaboy2
Added P.s. at bottom of the post

[SarEl]

All well and good - but the verbal agreement cannot be evidenced, whilst the written agreement which can be evidenced says something entirely different and is signed by the OP.

[teaboy2]

I think any judge with common sense will see that no reasonable person would sign such a contract as a self employed person/freelancer and work for no pay, unless of course they had been promised otherwise prior to signing. But thats upto the judge to decide.

[SarEl]

No it is not. Judges cannot apply "common sense" in contractual matters - they can only apply the law. Whether the OP was being "reasonable" when they signed the contract is not relevant - they signed it. You cannot say that because the contract was daft, that the OP must have had some other inducement, not in evidence, to sign the contract when, for better or worse, the contract terms are clearly written down. People sign daft contracts all the time - evidence store cards with more than 30% interest charges! The terms of the contract that the OP signed are very clear, and nowhere does it say that the gym agreed to to introduce clients and guaranteed a minimum number of private hours - it says (if I recall correctly without looking) that the OP could use the gym for private sessions with clients from the gym or gained by the OP. That does not imply or promise any such clients will be provided.