If you assume, you make an ASS out of U, but it could earn ME money!

Harsh, but true.

Plenty of people come to me for legal advice and will often start the conversation with “I assumed that because of xxxx, I’d be ok”. Sometimes they are right, often they are wrong.

“I assumed I could trust them, so I didn’t think we needed an agreement” is a common one. Of course you trusted them. You wouldn’t be doing business with them if you didn’t, but things go wrong. No matter how trustworthy they are, if they die, go bankrupt or become mentally incapacitated you’re no longer dealing with them, you’ll be dealing with their next of kin or trustee in bankruptcy who may be less amenable.

“I assumed they knew what they were doing, so I didn’t read the agreement or get independent legal advice on it” is also common. It can actually be worse than not having a contract, because you are bound by something specific, rather than arguing about implied terms and handshake agreements. The fact that you chose not to read it or get advice on it will not protect you. I’m often told, “I couldn’t afford legal advice”. Well it’s going to cost you a lot more now, so that was a bit of a false economy wasn’t it!

But my latest favourite is “I read it, and I knew that there was something in it that wasn’t right, but I assumed that it was there in error, so I signed it anyway”. Given how easy it would have been to say to the other side (in this case their employer) that they believed a clause was incorrect and get it checked, it is really hard to see how this one went wrong, but it did. A teacher was on an annual fixed term contract, which included a probationary period which said that during the first month, they could be dismissed on two weeks’ notice, but after that it was one term’s notice. At the end of the year, they were offered another, identical contract, with an identical probationary period. They assumed that the probationary period didn’t apply to them because they weren’t new to the role, and it was only for first timers. Two weeks into the September term, they were dismissed, and given two weeks’ notice which paid them up to the end of September. They argued that it should have been a whole term’s notice, which would arguably have taken them into January if not to the end of the Spring term, which is obviously a lot more money (at least three months more!) plus plenty of time to find another role to start in January.

Sadly, they were wrong. The contract is the contract, and if an employer wants to put a probationary period in, every time they renew, then that is their right because each new contract is a stand alone agreement. Even if that clause was there in error, the school were obviously going to exploit that error if the need arose – why wouldn’t they! However in this case they could show that they always included the probationary period in every contract (new or renewal) unless it was specifically negotiated out, and that they had had concerns about the teacher in question so that even if he had raised it, they wouldn’t have removed it, although at least it would have given him the heads up that he might need another role. If the teacher had thought that the clause was included in error, he should have said so immediately and certainly before he signed. He wouldn’t have even needed legal advice. They would either have agreed and taken it out (or at least confirm in writing that it didn’t apply) or (as appears to be the case) told him that it was there for a reason, and they wouldn’t remove it under any circumstances.

So the moral of this story is that if you’re going to make the effort to read what you sign (which you obviously should) and you spot something that you’re not happy with, tell the other side or tell me, but don’t just assume that it will all be ok in the end, because often it won’t!

Kleyman & Co Solicitors. The full service law firm. We’ll never take you for a ride.