No-show fee?
Doctors, dentists, restaurant owners, hotel managers, and...also lawyers, in short, almost all self-employed individuals are familiar with the phenomenon: customers who make an appointment or reservation, but don't show up without notice. Very annoying. Naturally, you suffer losses: not only may you have already incurred expenses in preparation for the appointment, you also miss out on income because you miss out on other clients at that vacant time.
Can you guard yourself against such ‘unfaithful’ customers? Can you charge them a so-called ‘no-show fee’? And if so, is it legally valid? We discuss these questions in this Wanted Fact.
Is a ‘no-show fee’ legally enforceable?
The answer is quite simple: such a ‘no-show fee’ will only be enforceable insofar as it is part of the agreement between you and the customer. In concrete terms, this means that you have to prove that the customer was aware of the ‘no-show fee’ no later than at the time of entering into the agreement, as well as that the customer accepted this ‘no-show fee’. The starting point is that the customer must be able to decide freely and with full knowledge of the facts whether or not to accept the ‘no show fee’. The example of the doctor's appointment, where the principle of the ‘ no-show fee’ only hangs out in the waiting room, is not enforceable because this notice was not included in the contract.
There is no problem when the appointment is made online and the module explicitly states that before the appointment can be booked, the service provider reserves a no-show fee. Thus, the appointment cannot be booked without an agreement from the customer with a ‘no-show fee’. More problematic is when the appointment is made by phone. You would then do well to confirm the appointment over the phone in writing via e-mail shortly afterwards, stating that you will charge a no-show fee.
It is also important that you always fix the amount of the ‘no-show fee’ to avoid discussions about the extent of the damage afterwards. You should also always confirm the amount in writing at the latest when the appointment is made (or repeat it in the confirmation e-mail if the client made the appointment verbally). A ‘no-show fee’ is valid in principle, but can be qualified legally in different ways. It could be a notice clause, which is valid provided it is not contrary to public policy (which we do not think poses a problem). It could also be a damages clause, the amount of which the court could reduce if it was excessive.
Practical examples of the ‘no-show fee’
In practice, it is rare for a self-employed person to initiate court proceedings to collect his ‘no-show fee’ because of its limited scope. But in some cases, principle prevails and the justice of the peace will decide on a case-by-case basis whether the ‘no-show fee’ can be awarded!
Some practical examples:
- Justice of the Peace Kontich March 1, 2018
In this case, the no-show fee was not awarded to the doctor because the appointment was given after the patient had been referred by another healthcare provider. Thus, according to the justice of the peace, it was not proven that the patient had effectively consented to the appointment, nor that the patient had knowledge of the no-show fee.
- Justice of the Peace Bruges 6 October 2015
In this case, the no-show fee was awarded to the doctor because the patient had failed to show up on several occasions. On several occasions, the doctor had unnecessarily taken time off his schedule and provided unnecessary equipment and staff. The justice of the peace's decision was based on the contractual relationship between the parties and the informative consultation where various treatment arrangements were made between the parties. For instance, the message that a no-show fee would be charged was stated on the appointment card and was also repeated in a written message to all patients. The dentist managed to prove his actual damages and was thus compensated.
- Court of First Instance Antwerp 8 February 2010
In this case, the no-show fee was awarded to the doctor because the patient had failed to turn up to four appointments for extensive treatment lasting four hours each. The fact that a no-show fee could be demanded in case of non-timely cancellation between the parties was not disputed by either party. However, the dentist initially claimed the lost revenue and losses incurred for each of the appointments made, which was more than the flat fee in case of no-show. This the patient did not agree to, and the court awarded lump-sum compensation.