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Charging for lost income due to missed appointments
By Dayan Yehoshua Grunwald, Dayan at the Bet HaVa’ad
Delinquent Clients
Query: As a professional consultant, I service my clients for half-hour appointments scheduled in advance. Many times, clients miss appointments, causing loss of my time that would have been used to service other clients. The only way this profession is profitable is by maximizing the time by filling each slot with appointments. Can I charge those clients who miss appointments? Can I charge them the full amount I normally charge for a consultation?
A Guide to a Complex Issue
There is no one answer to this question; it depends on a variety of factors specific to each situation. The objective of this article is to inform readers of the general guidelines, as well as strategies to avoid losses.
The Gemara[1], as explained by the Rishonim, discusses a case of an employer who verbally hired a worker, but eventually backed out of his agreement before the work began. This caused the worker loss of potential income, because he had given up another job opportunity, thinking he was already hired by the first employer; the Gemara states that the employee must be compensated.
An application in our times: Reuven the plumber was hired to work during a specific time on Tuesday for Shimon. Reuven, having a successful plumbing business, had other customers, also requesting his services for that time slot. Shimon afterward canceled his appointment with Reuven at a time too late for Reuven to find other work; in this case, Shimon must pay Reuven even though he isn’t receiving any service from him. This is the general Halacha quoted in Shulhan Aruch[2] and is the final Halacha we follow.
Exceptions
However, there are numerous exceptions and limitations in applying the aforementioned Halacha. One such limitation is that the employer is only obligated to pay the amount of Po’el Batter (idle worker). This means that the employer is not liable for the amount that the worker benefited from relaxing or not working; the compensation due to the worker is reduced accordingly. Nevertheless, this reduction of the compensation has one caveat: Achlushe Mehuza. Achlushe Mehuza refers to a type of worker who benefits more from working than from being idle. In this case, the amount the worker has a right to be compensated is reduced in proportion to the amount that the worker needed or benefited from the unexpected time off. Defining the exact amount of compensation can vary with type of job, pay, and individual[3], usually requiring a Bet Din to evaluate.
Another important factor to consider is that, if the reason the would-be employer canceled the work was an “Ones” (a reason out of his control) or, according to many Poskim, a Shogeg (unintentional), then he is exempt from paying for the loss of the worker’s time.
Thirdly, the employer can only be required to pay for lost time if the worker can prove that he had other work opportunities available to him during the time which he committed to do the job in quesion[4].
Missing Appointments
Returning to our original scenario, when a client schedules an appointment with a consultant, it is considered verbally hiring that consultant. The client who then misses an appointment, at a time when no other client could be scheduled as a replacement, has repudiated from the employment agreement and caused a loss to the consultant similar to the aforementioned case of Shimon canceling on Reuven the plumber.
The client must reimburse the consultant, following the Halachot of an employer that abandoned a worker causing the worker to lose potential work. Following the framework mentioned earlier, the client would not be obligated to reimburse the consultant if the consultant didn’t certainly have other clients, and may not be required to pay in full if the consultant benefited from the time off. Also, if the client missed due to an urgency or mistake, the client may be exempt from paying anything at all.
Preventive Measures
As each of these factors is difficult to ascertain[5], it is recommended that providers of services or labor take preventative measures to avoid such situations.
The consultant should have each client sign a halachically binding agreement to pay a specified given amount (less than the full amount), for any missed appointments regardless of the reason, stating specifically the requirement to pay is not activated by any of the factors which generally absolve the payment. These would include: if the cancellation was accidental (Ones or Shogeg ); if the booking was replaceable; and, if the worker benefited from the time off. This specification to the agreement empowers the provider to later decide if he/she wishes to exempt such a fee due to the circumstances of the client.
Once such an agreement is signed, the provider can charge the given fee in all applicable situations without the need for evaluation of the many factors. In the absence of such an agreement, it is recommended that one discuss with a competent Posek (possibly requiring both sides to present their argument) whether he/she can charge for the missed appointment.
An Important Factor
On a final note, this entire discussion relates to a mere agreement to employ, wherein the work has not yet commenced. In the case where the provider actually began some of the work, the Halachot change considerably.
Sources:
[1] Bava Metzia 76b
[2] Hoshen Mishpat 333:2
[3] It can be noted that according to the Taz, the amount of Po’el Battel is a fixed amount of half the original wages; however, many Poskim disagree and say that it varies in amount. See Mishpat Shalom 176:44 and others.
[4] Sefer Mishpete Hoshen writes that it is very often the case that it is impossible to prove. Nevertheless, if the employer trusts the worker, the employer has a moral obligation to pay – Latzet Yede Shamayim – to satisfy his obligation to Heaven.
[5] Sefer Pithe Hoshen ch. 10 footnote 2 writes that very often this is the case and the parties must make a Peshara (compromise) in such a situation.