By Vanessa Pratley
Investigative Journalist | Kaipūrongo Whakatewhatewha
When Mark* suffered an accident, he couldn’t even drive his car, let alone work out at the gym. With a membership to Inception Gym that he couldn’t use, he decided to cancel. But when he emailed the gym, it told Mark he had to cancel his membership in person.
Mark tried telling Inception Gym that he was unable to drive and couldn’t make his way in. The gym wouldn’t hear it. It insisted that under its terms and conditions Mark couldn’t cancel unless it was in person.
Mark didn’t think this was right. He wrote to the gym and let them know he thought it was unreasonable to require him to come in, especially considering his injuries.
The gym responded, telling Mark that if he sent a medical certificate to the gym to confirm he couldn’t drive, it would agree to vary the contract.
Yet, no one should have to send a gym a medical certificate to cancel their membership. Mark repeated this to the gym, which eventually agreed to cancel Mark’s membership.
Its owner responded in an email stating the gym wasn’t trying stop Mark from cancelling his membership, only trying to verify his identity. Inception Gym said it has suffered three past incidents where “memberships have been cancelled by people accessing people’s emails”.
“We are simply trying to protect your privacy and account … there is no economic loss being forced upon you by these requests.”
We disagree. Not only could Mark lose money by continuing to pay for a gym membership he was trying to cancel, but in providing a medical certificate, Mark could lose privacy over his personal information.
We think a photo of Mark’s drivers’ licence or proof of his address are likely to have been reasonable proof of his identity in this case.
Is this fair?
We think Inception Gym’s cancellation clause is likely to be considered an unfair contract term.
In 2017, the Commerce Commission performed a review of gym contracts and identified a range of clauses in standard-form gym contracts that had the potential to be unfair.
Some of the clauses identified were terms that tried to limit consumers’ rights to cancel their memberships, including by forcing them to cancel in person.
Unfair contract terms are banned under the Fair Trading Act. The Commerce Commission says that a term will generally be unfair if:
it puts you at an unfair disadvantage by creating a significant imbalance in the rights and obligations between you and the business, and
it would cause detriment to you if the business relied on it, and
the term isn’t reasonably necessary to protect the business’s needs.
Giving a gym written notice of your intention to cancel, including via email, should be enough to cancel a contract, even where the contract specifies it must be done in person.
Unfair terms still catching out consumers
We’re concerned that despite the 2017 review and laws prohibiting unfair contract terms, consumers continue to fall victim to unfair contractual practices.
We’ve reported Inception Gym’s potentially unfair contract term to the Commerce Commission, and we’ll be on the lookout for more examples. Let us know if you think your gym contract contains a similar clause.
*Name changed to protect privacy.
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