Consumer rights regarding Personal Trainer

Mackers12 · 7 December 2019 at 12:24PM

Hi all!

I've unfortunately had a fairly brutal first experience into the world of personal training (and not the sore muscle kind of brutal you would expect...).

The long and short of the issue is:

- I entered into a contract with a PT associated with 'The Gym' group. The contract was directly with the PT, not the gym itself

- The agreement was for 6 sessions, at £60 each, running until the week commencing 9th Dec

- First three sessions went ahead as scheduled. Not the core of the issue obviously, but for added context - quality was poor (spent as much time on his phone whatsapping during our sessions as he did actually training me, didn't take notes, had no input or guidance for what to be doing during the week outside of sessions).

- On week 4 - he cancelled the session with about 2 hours notice, claiming of a bad back. I understand these things happen, so we agreed that we'd fit in an extra one the following weeks.

- On week 5 - he simply didn't show up to our agreed session. When I asked him why he didn't turn up, he got defensive and claimed we hadn't confirmed the date or time. We had, very clearly confirmed (which I have evidence of) - and I pointed him to the confirmation. He then claimed that he has a dispute with the Gym (over training non-members), and currently has no access to the gym at all because he's refusing to pay the gym floor rent until this is resolved. He made no mention of this until after he didn't show up for our session.

- He made it clear we wouldn't be able to proceed with the following weeks (which should have been the final weeks) session, as the 'conflict' was unlikely to be resolved.

- I was a bit gutted at this point - but figured I'd just cut my losses. We had agreed 6 sessions, one per week, up to the week commencing 9th - which clearly wasn't happening. Three of those sessions were not fulfilled through no fault of my own.

- I asked for a refund for the three unused sessions. He refused, and said my sessions are now 'expired'.

- He did say he would make his 'best effort' to reschedule, possible in the new year (though our agreement was up to w/c 9th dec only). Had he been a decent PT - I might otherwise be inclined to accept rescheduling to the new year - but now I just want shot of him, and my money back.

I should also note that our 'contract' wasn't put into a document or signed - but we did make an explicit agreement (that I'm hoping can consider a contract) over Whatsapp. £180 is a lot of money for me to just simply walk away from. .. and yes - I've learned some hard hitting lessons from this situation (you live and learn), but I can't help feel I've been taken advantage of here, and would be interested to know if I have a leg to stand on if this were to proceed to small claims? It's obviously frustrating to have 3 sessions not fulfilled through problems with the PTs end... and to paid a large amount of money for a service not provided, yet still be refused a refund. I also know being frustrated and having a legal basis for seeking to reclaim the £££s are very different things...

Any advice? Or suggestions for next steps? So far I've only engaged with him on text / Whatsapp - so planning on sending him an email setting out the above, including that I consider he has breached contract, that I require payment of £180 by X date, or I'll be complaining to the Gym, and possibly seeking to recover the costs through small claims if necessary.

Thanks!
:beer:

[Deleted User] · 7 December 2019 at 12:50PM

How did you pay?

Mackers12 · 7 December 2019 at 12:51PM

Paid for the sessions up front - £360 Bank Transfer (which I can evidence through online banking)

pinkshoes · 7 December 2019 at 3:19PM

Do you have his home address or business address? If not, can you find it out?

You will need this to send a letter before action threatening to take it to court if he doesn’t refund.

I would ask for a refund for the full 3 unused sessions within 14 days, but if it has to go to court, you will be claiming a 50% refund on the 3 other sessions too due to poor quality (list as you did above...)

Mackers12 · 7 December 2019 at 3:44PM

Thanks pink shoes!

I don't have his address. I could ask for it, but suspect he may be wise to why I'm asking (haven't said the court word yet, but he knows I'm not happy). I'm not exactly sure what the arrangement is between him and The Gym, and whether this could count as his business address. My understanding is he just uses the gym space, but isn't an employee.

I will send him an email with your suggestion. If I'm unable to obtain an address for the LBA, is it then a lost cause (other than nicely asking The Gym to help mediate and reach a resolution, even though my agreement was with the PT)?

Thanks! :beer:

Mackers12 · 9 December 2019 at 1:41PM

UPDATE:

I emailed the PT in line with the recommendation above, and got a limited response:

"on December 5th 2019 I was informed by The Gym Group In Acton of the cancellation of access to the gym facilities due to a dispute of charges, changes of dates, changing on the contract without notice, this dispute is ongoing and will take some time to resolve, as a preventive action on my part I'm freezing the training for the rest of the December month"

From a further email - he made it clear that he would not be issuing my refund as requested, stating he thinks my sessions are 'expired', "I have informed you on October 10 2019 by Whatsaap chat that my programs are delivery in the month and expire after 6 weeks, as per today all your sessions are expired and you have not rights to be honored any sessions left,"

I've offered until the 22nd Dec for him to make the refund, but have already decided that (assuming he doesn't pay) I will go through small claims. Feel like this is shocking behavior, and unfair (and I've got in touch with The Gym, the reason he is being denied access there... *drum-roll* he was found to be in breach of THEIR contractual arrangement".

Question on address requirements:

In my letter I asked him to provide his current address. The exact wording was:

"I also a require a physical address for you for which I should send any correspondence by mail, in order to maintain physical records on this matter. I would be grateful if you could include your current address in your next response. Otherwise, I will direct all correspondence to your last known business address at:
Mr [xxx]
[ X gym address]

I will also be sure to direct any further correspondence to you via email at [xxx]"

In his response - he confirmed he is happy for me to direct correspondence to this address, exact wording,

"as the business and your contract was established at the The Gym Acton you can contact in writing and hand the letter to the management there"

In response to this - I then commented, "Finally, thank you for explicitly confirming that the last known address as stated in the letter ([x address) is the current valid address for you that I should direct any correspondence, including any potential legal proceedings documentation. I will also be sure to provide any further correspondence (including the issuing of legal proceedings, if necessary) electronically, to [x email]

[ Do you think this is sufficient to take forward to meet correct protocols of making a small claim? If not - any suggestions about how I might go about progressing this?/B] I have complained to The Gym. I could ask them for his own address - but I'm fairly sure they wouldn't be able to provide.

Cheers.

custardy · 9 December 2019 at 2:42PM

pretty poor of the PT.
My understanding of these types of gyms is the PTs 'pay' in time by covering classes etc for use of the gym and earning from PT sessions only.
So wonder if the fees are related to the PT not doing the required shifts.
Its a small world ofr PTs so they could be burning some bridges!

unholyangel · 9 December 2019 at 2:49PM

Mackers12 wrote: »

Do you think this is sufficient to take forward to meet correct protocols of making a small claim? If not - any suggestions about how I might go about progressing this? I have complained to The Gym. I could ask them for his own address - but I'm fairly sure they wouldn't be able to provide.

Cheers.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.8

Paragraphs 6.8 & 6.9.

Mackers12 · 9 December 2019 at 6:49PM

Thank you everyone!

I tried again to encourage him to refund. Final response noted, "Because your sessions expired last month and you have not accepted the options I have provided, I'm cancelling the contract on those grounds."

Surely if he has now admitted to 'cancelling the contract' with 3 outstanding sessions that I have paid for... that would help my case of being entitled to a refund (the contract was for six sessions)?

Sorry - Obviously not an expert in contract law, and appreciate everyone on here providing much appreciated help!

@unholyangel. That was very helpful, thanks for signposting! Do you know if 'taking reasonable steps' to obtain current address is a particularly high bar to meet? I know it's a difficult question and obviously I'll need to decide myself if the risks of going to court are worth the prospect of winning - but for anyone who is slightly more informed in this area... any views on whether my efforts to confirm his current business address (and his response which confirmed I should direct correspondence to X address), would be likely to be considered as reasonable steps?

Also, does anyone know if Personal Trainers are subject to GDPR? I would also like to issue a Subject Access Request to see what personal information he has on me, should this go to court (as a way of helping to evidence that even though he had agreed to monitor my progress towards a specific goal, monitor my nutrition plan etc.. which he's done nada for). [POST EDIT - never mind - found the confirmation I was looking for!]

Thanks!

unholyangel · 10 December 2019 at 9:20PM

You've asked him for an address and specified its for those purposes. It would also be for him to raise any point of CPRs not being complied with/service being ineffective. I can't see a judge entertaining such a claim when he has said you can send it to the business premises.

And I seriously doubt he will do that given his completely erroneous position on thinking he can fail to meet his contractual obligations but that yours are still binding on you.

If it was genuinely for circumstances outwith his control (these aren't outwith his control) then he would still be liable to provide a refund for services that weren't provided as agreed. However if the breach is within his control, then he is also potentially liable for damages.

Check out the CMA's unfair term guidance

I would normally highlight any sections you'd specifically want to look at, but in this instance, that would be about half of them!

Mackers12 · 11 December 2019 at 10:54AM

If it was genuinely for circumstances outwith his control (these aren't outwith his control) then he would still be liable to provide a refund for services that weren't provided as agreed. However if the breach is within his control, then he is also potentially liable for damages.

Check out the CMA's unfair term guidance

@unholyangel - You are the hero Gotham deserves, but not the one it needs right now. A silent guardian. A watchful protector. A Dark Knight.

(But really - thank you and to everyone! I'm really not excited about the prospect of going to small claims for the first time - but this has been massively helpful and makes it a lot less daunting. It's now a waiting game until I issue the LBA, so will def come back to update in due course! Also of interest.. he's come back within an hour of my subject access request to say he holds no record on me... I call bullsh!t.)

:beer:

Consumer rights regarding Personal Trainer

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