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DR Lawyer
DR Lawyer, Lawyer
Category: UK Law
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Experience:  BA (Hons) Pgdl Pgdlp (LPC)
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Recruitment Agency - Candidate Ownership/Invoicing Issue

Customer Question

<p>I run a small recruitment agency. I have/had a long term client I did business with for about 6 years, where the relationship went a little sour over the last two. Twice now they have taken on people through other agencies whom I've sent over first and received negative feedback on. Only to have another agency re-submit within a month or so and then they take them on... I think the reality is that they are just very disorganised and different managers don't see what the others are doing ( in a company of 20 people!!). </p><p>The reality is our Terms of Business protect us clearly against these situations. I spoke with a Director a week before they made the last offer and pointed out that I clearly had representation rights and that they were legally obliged to honour that. I also have made to offers ( Split Fee or Exclusive on another role they had ) The split fee they didn't respond to and while one director implied he's got higher value roles he can give me... the other director dismisse that idea. The Director I know was very apologetic and said "we'll work something out" but unfortunately a second director doesn't seem to care. </p><p>2 months later and not a word from them. I have documented everything and am about to send them a penalty invoice at 30% of base salary ( based on our terms of business ), which they have a few copies of. Starting Salary was around £27000.</p><p>Does anyone have specific experience in recruitment agency law?, who could a shed some light on my position... with legally correct step by step actions for me to take?Possibly help with a well worded letter and potentially representation when they don't pay the invoice and it probably goes to court?</p>
Submitted: 4 years ago.
Category: UK Law
Expert:  DR Lawyer replied 4 years ago.

DR Lawyer :

Hello, Many thanks for your question. I shall endeavour to assist. If there is anything in my answer that you require me to clarify please ask.

DR Lawyer :

I have alot of experience for acting for recruitment consultancies. I act in my day job for some big highstreet names.

DR Lawyer :

I imagine that you have got an REC standard form set of terms of business that entitle you to a fee if they engage someone that you introduce. I have done hundreds of these "back door" cases and you should win.

DR Lawyer :

Send them an invoice quoting the relevant clause and that the invoice has been rendered because you introduced the two candidates and they took them on. If they fail to pay then send them another letter threatening court action. If they still fail to pay come back on here and ask me to prepare the particulars of claim for the court. I would suggest you set the question value at around £40 because there is quite a lot of work involved. What I would need to know from you is the date each candidate was introduced, the date they were engaged, confirmation of the date the Terms were signed or given to them and also please cut, paste and post your terms on here.

DR Lawyer :

If you want to come back to me at a late stage to ask me to do this for you then click on my name below DR Lawyer when you come back into the question. Then you can post me the new question on my profile page.

DR Lawyer :

Regards

DR Lawyer, Lawyer
Category: UK Law
Satisfied Customers: 2319
Experience: BA (Hons) Pgdl Pgdlp (LPC)
DR Lawyer and 3 other UK Law Specialists are ready to help you
Expert:  DR Lawyer replied 4 years ago.
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Customer: replied 4 years ago.

Hi Dr. Lawyer... yep, I knew about the invoice to threat of legal action side to initiate the process.

 

1.Curious if my 30% penalty fee for not informing us of a starter ( we normally work to 15% with them ) is upholdable.

 

 

2. Also... with regards XXXXX XXXXX one from summer 2009.... can I still act on this?? here are the facts. I'm happy to pay for two answers here.

 

Here is the email trail from 2009. Although all emails went to WorksUnit... they were claiming a that the hire I was looking at was for a division ( we are talking about a company of 30 people all in an open planned office. All emails on recruitment for any placements go through Grace's inbox. Barry would have sat within 40 feet of Grace's desk when he joined. She's trying to make it sound grander than it is.

 

---emails--

Rob,

 

The WorksMedia job roles have still been put on hold. Barry Webber has been employed by WorksUnit, a completely separate company, for an entirely different job role, for which I did not get involved with. If you have any issues then please feel free to give me a ring.

 

Thanks

Grace

 

From: Rob Johnston [mailtoXXX@XXXXXX.XXX]
Sent: 17 July 2009 13:55
To: Grace Brown; James Quinnell
Subject: FW: Barry Webber - Developer

 

Hello Grace / James.

 

I just got in a couple of Flash roles with Graphico, so as a start am going through the work I did for you guys in April & May. 5 weeks effort with 13 candidates submitted...

I called Barry just now to see if he was interested in my roles... and he says that he's employed at WorksUnit?

 

At the time there was expressed interest in Barry from the team, and we specifically talked about his front-end strengths being of use; but it was all on hold. Initially while Harley / Dave were in Vancouver and the because of the acquisition when they got back.

 

I called back mid June, spoke with Grace and was told it was all still on hold and to call back end of July.

 

What Gives?

 

Please give me a call on my mobile to discuss. 07795 053 095

 

Best Regards,

 

Rob

Rob Johnston| Senior Consultant | Go Partnership | t: 01189 747505 | m: 07795 053 095 | w: http://www.gopartnership.com/


From: Rob Johnston
Sent: 08 April 2009 16:20
To:XXX@XXXXXX.XXX
Subject: Barry Webber - Developer

 

Hi Grace,

 

Another guy for you to put over to Harley.

 

He's in between the two roles. Last salary £25K, front-end strength but super keen on a Actionscript focused role, so think he'd be a little flexi

 

Rob

 

 

Rob Johnston| Senior Consultant | Go Partnership | t: 01189 747505 | m: 07795 053 095 | w: http://www.gopartnership.com/

 

 

Customer: replied 4 years ago.

Hello Dr. Lawyer,

 

I sure hope only you can see this info that I've posted! I've contacted Justanswer to ask the visibility of it. We are sending in an invoice on Monday for the latest Candidate, but will wait to you hear from you with regards XXXXX XXXXX candidate from last Summer.

 

Biggest question would be whether they can hide behind "well, that was for a different company/team, for a different role"... In which case it would be a waste of time and just antagonise them more. Financially, they are sound company so I'm not opposed to go down the legal route if I have a very strong case.

 

We are going to keep them as two separate issues and two seperate invoices.

 

In the email paste above ( which I can't re-edit!) you've got my mobile or our company website from which you can send an email to me... or just keep it to this site.

Your choice.

Rob

Expert:  DR Lawyer replied 4 years ago.

Hi Rob,

 

Sorry for the delay in getting back to you. I was at work today in my day job.

 

The situation you describe I have come across about 20 or 30 times before and I have litigated and won those disputes.

 

There will be a clause in your contract I imagine called a third party intro clause. This clause will entitle you to a fee if you introduce someone to them and they then introduce them to someone else.

 

Regards


DR Lawyer

Customer: replied 4 years ago.

Hi,

 

To be honest, I don't think they did this intentionally. No malice, just a little disorganized.

 

Each case would be the left hand not knowing what the right hand is doing... but my business has suffered.

 

Question is, if they claim that it was a different "company" and a different "role" even if the this other company is one physical desk away...

would a Judge say "you sent the CV to them for company W and Role X.... they are saying they hired them for company Y for role Z... even if the Holding company is WorksUnit and all CV's were going through the same gal. ... Doesn't matter, you don't get to send a fee??

 

Or would he say "you sent CV's to a main contact for an organization, that organization hired said person (doesn't matter for what division, what role) and hence, you deserve a fee.

 

Hopefully that makes sense?

 

If you don't understand what I'm asking let me know and I'll try and explain it more clearly. Is another £30 good?

 

Thanks,

Rob

Expert:  DR Lawyer replied 4 years ago.

Yes that would be fine.

 

From what you have told me this is a third party introduction case. Look for the clause in your REC standard form terms that refers to you being entitled to a fee if you introduce a candidate and they introduce the candidate to a third party who engages the candidate. There is also something about candidate introductions being confidential. That is the clause you would rely on.


Regards


DR Lawyer

DR Lawyer, Lawyer
Category: UK Law
Satisfied Customers: 2319
Experience: BA (Hons) Pgdl Pgdlp (LPC)
DR Lawyer and 3 other UK Law Specialists are ready to help you
Customer: replied 4 years ago.

So regardless if they physically introduced the candidate to a 3rd party. I'm suer another agent just came across them on the market and submitted, ( not knowing the history )

 

I would still rely on this clause. I.e. it's not my responsibility to prove, or question how the same candidate appeared in there inbox. Whether incidental, or intentional.. I'm entitled to a fee as per my Terms of Business.

 

 

On a Side note. the FD is almost dismissing our terms of business, and my reference to the, and has been asking for our "terms of agreement" that we have with his company. What is he angling at?

Customer: replied 4 years ago.

Oh... I just realised that you didn't address the previous question about the placement last year.

If they stick to their guns that it was a different role for a different group within their company... as per their email to me in July 2009 when I raised the issue... and I can't prove otherwise. I would have a Zero chance for a Case for the placement in 2009, correct??

 

I just don't want to give them one solid invoice... and then one flimsy one; that they can then focus on, i.e. if they feel their position is rock solid.

My fear is that it will then protract the very valid one from this year.

 

Hopefully I haven't confused you hear and you understand the situation pretty well.

Rob

07795 053 095

Expert:  DR Lawyer replied 4 years ago.

Rob,


From what you have said the invoice for last year was not an engagement by your client but rather an introduction to a third party company. They sit in the same building, in fact open plan office, so you can quite easily allege that they introduced the candidate to the other company and thus trigger a third party introduction fee. I say this on the presumption that your terms are pretty standard terms of business for the recruitment sector and would have the usual clauses.


Regards


DR Lawyer

Customer: replied 4 years ago.

Hello Dr. Lawyer.

 

Things are progressing down here and I still don't think we clearly understand what you are saying. You keep referring to a 3rd party introduction. I honestly do not feel this took place and I do think that if I claim 3rd party introduction ( as in passing of details to a third party), they will be able to go to the other agencies and provide proof the candidates contacted them through normal recruitment channels. Just so that you know, my client paid full fees to agencies for the introductions of the candidates I'm claiming on.

 

I feel, my only case here is to argue " I sent their details to you first, you acknowledged receipt, we are contractually in business together, and as such you are legally obliged to owe us a fee for their employment as per our terms "

i.e. "regardless if I was the one who you decided to set the interviews up through, either by choice or by mistake "

 

If I claim. " I showed you Candidate details, you passed them on to a 3rd party, you hired through that 3rd party,, etc.." they will probably laugh at me, pretty easily disprove that statement and say "case closed", we owe you nothing.

 

Their FD sent me an email today, based on my claims that I got most recent candidate over to you 1st. He is saying that even the most recent hire was for a different role!? ( which is b.s.) .

He stated "obviously there has been some confusion here, we would like to continue working with you int he future, "without prejudice" would like to offer you £1,000 as a final settlement on this matter"

 

I have not brought the hire from 2009 into the picture yet.

 

*** I'm feeling the need to restate my 2 legal questions to you, as your legal experience is being relied upon with regards XXXXX XXXXX far we take this ***

 

1. Can I legally chase after a fee on 1 or Both candidates based on the fact that I sent over the candidate details first and had acknowlegement of receipt of those candidate details from a director of their company? I.E. Claim a fee solely on the back of 'I introduced their details first' ?

 

2. If "they argue / or can prove the candidates were hired for different roles, or by different companies within their small open plan office".. both within 6 weeks of me 1st introducing them - Will it cause serious problems for my claim/legal case?

 

As such should i take a negotiated offer or stick to my guns for the full amount(s)?

 

please call if you need to

01628 407 422

07795 053 095

Rob

Go Partnership.

 

 

Customer: replied 4 years ago.
<p>Here is a copy of our Stand Terms - if needed -</p><p> </p><p align="center"><strong>Read these Terms of Agreement carefully as they are binding upon you.</strong></p><p align="center"><strong>It is Go Partnership Ltd's policy to strictly enforce its Terms of Agreement in the event of any dispute.</strong></p><p align="center"> </p><h4>TERMS OF AGREEMENT</h4><p align="center">This Agreement (hereinafter to be called "the Agreement") is made between</p><p align="center">GO Partnership Limited (hereinafter to be referred to as "GO")</p><p align="center">and The Client (hereinafter referred to as "the Client")</p><p align="center"> </p><p> </p><p>1.     GO is in the business of introducing Candidates skilled in computer work to Clients in all sectors of the Data Processing Industry for permanent appointment with them.</p><p> </p><p>2.     GO will introduce candidates to the Client and introduction of a candidate shall be deemed to have taken place when GO provides to the Client any information relating to a candidate.</p><p> </p><p>3.     The Client is responsible for checking a candidate's references relating to his/her qualifications, skills, character and experience and for seeing that the legal and medical requirements relating to a candidate have been met and for obtaining a work permit when necessary. GO provides an introductory service only and it does not make any warranty or guarantee upon either a candidate or the candidate's qualifications nor does it provide any assurances to the client as to a candidate's suitability for an appointment.</p><p> </p><p>4.     This Agreement will constitute the entire contract between GO and the Client and can only be varied by written agreement between GO and the Client and noted upon this Agreement.</p><p> </p><p>5.     If an appointment of a candidate is made by the Client within 6 months of an introduction, GO's fee as set out in clauses 8 and 9 below shall become payable.</p><p> </p><p>6.     An introduction is strictly confidential. If the breach of this confidentiality by the Client results in the appointment of a candidate by any third party the Client shall pay the full fee to which GO would have been entitled in accordance with clause 9 or our  terms.</p><p> </p><p>7.     The Client shall notify GO immediately an appointment of a candidate is made and forthwith provide GO with a copy of either the offer of employment or the contract of employment. In the absence of such provision GO may obtain copies of the relevant documents from the candidate.</p><p> </p><p>8.     GO's fee is calculated as a percentage of the anticipated first year's total remuneration of a candidate. This means a candidate's gross remuneration including but not limited to any salary, guaranteed bonus or commission, car allowance or any other taxable benefit and weighting allowance. The Client shall provide to </p><p> </p><p>GO a full statement of the total remuneration to be received by a candidate.</p><p> </p><p>9.     To determine GO's fee the percentages applied to the total remuneration determined according to clause 8 above are:</p><h3>Total remuneration              Percentage applied</h3><p>Up to £29,999                                  20</p><p>£30,000 - £49,999                           25</p><p>£50,000 and above                         30</p><p>GO's becomes payable on the appointment of a Candidate, including any appointment as detailed in Clauses 5 and 6 above.  An appointment takes place whether or not such appointment is conditional upon the passing of a probationary period. Should the Client fail to advise Go of the appointment within 14 days of the start date of the Candidate, as detailed in Clause 7, any negotiated percentage becomes void and a fee is payable at 30% of the first year's remuneration.</p><p> </p><p>10.  An invoice is payable within 28 days of its date of issue. If payment is not duly made within 28 days, the full invoiced amount becomes due and the Client shall pay interest from the date of invoice at 8% above the current Barclays Bank Base Rate (calculated daily on a pro rata basis).</p><p> </p><p>11.  The Client shall bear all legal and recovery costs incurred by GO if an invoice is not paid or if it is paid more than 28 days after it was issued.</p><p> </p><p>12.  If the appointment of a candidate is terminated within 8 weeks of the commencement of his/her employment with the Client a rebate will be paid by GO to the Client at the rate of 12.5% of the fee charged by GO for each full week the candidate did not work during the 8 week period subject to clause 13 set out below.</p><p> </p><p>13.  No rebate shall be payable if any of the following circumstances apply:</p><p>(i)    GO is not notified in writing within 14 days of the termination of the appointment together with the reasons for it;</p><p>(ii)   the cause of the termination has no bearing on the candidate's qualifications capability or conduct;</p><p>(iii)   the fee is not paid to Go within 28 days of </p><p>               the tendering of the invoice.</p><p>(iv)  the candidate is made redundant.</p><p> </p><ul><li>14. This Agreement is subject to the jurisdiction of the laws of England and Wales. If any part of this Agreement is held to be contrary to the law or unenforceable the Agreement will continue but on the basis that that part of the Agreement is not included.</li></ul><p> </p><p align="center"> </p><p align="center"> </p>
Customer: replied 4 years ago.

Here is a copy of the email I received from their FD this a.m.

 

 

** Without Prejudice **

 

Hi Rob

 

Further to our conversation and your emails, I have reviewed the correspondence and the sequence of events.

 

It appears there has been some confusion over the last 12 months. The correspondence from James in 2009 related to a previous Account Manager recruitment which was concluded in early 2010. We did not commence the formal recruitment of a second Account manager (Caroline) until May 2010. Any other discussions with James in early 2010 were entirely speculative.

 

We recognise that there have been misunderstandings, but believe that both parties have acted in good faith. We are also putting in place procedures to ensure that future recruitment is managed by just one person at Works Unit. We only wish to use two or three agencies going forward, and this should ensure that any phone calls from you are appropriately handled (i.e. separated from the cold calls).

 

We would like to be able to work with you in the future and therefore we are prepared to offer Go Partnership Ltd the sum of £1,000 (one thousand pounds) in full and final settlement of this matter. I look forward to receiving your acceptance in due course.

Expert:  DR Lawyer replied 4 years ago.

Hi Rob,


I will come back to you on this a little later tonight. Sorry for the delay (I was not on Just Answer at the weekend and have been at work today).

 

Regards


DR Lawyer

Customer: replied 4 years ago.
<p>Dr Lawyer.</p><p>I somewhat urgently needed an answer to those two questions.  We are currently taking a very strong stance based on the fact that you feel that we have a case for both fees. As you were eluding to 3rd party introduction and forwarding details to other agencies, I just want to make sure that we are acting on the right advice.</p><p>My Case is solely on the merit of "I sent you Candidate details first" and as per our terms you were obliged to see them through me. </p><p>I would say to you that I fully understand "effective cause" of employment and the importance that "interviews" have with regards XXXXX XXXXX contracts.  As such knowing that I didn't line up the interviews which resulted in jobs being offered... i'm obviously a little concerned.</p><p>So wasn't sure which would hold up more. My " I sent the CV First " or..." We took them on through another agency in Good Faith "</p><p>It's to the point now that I have to know where I stand legally as I'm going to have decisions to make within a couple days, or sooner.</p><p> </p><p> </p>
Expert:  DR Lawyer replied 4 years ago.

Hi Rob,


Really sorry for the delay in coming back to you.

 

If you introduced the candidates to WorksUnit and they engaged the candidates (regardless of whether another agency also introduced them) you are entitled in my view to a fee.

 

If you introduced a candidate and the candidate was introduced by the company to a third party then you are going to be entitled to a fee in accordance with this clause "6. An introduction is strictly confidential. If the breach of this confidentiality by the Client results in the appointment of a candidate by any third party the Client shall pay the full fee to which GO would have been entitled in accordance with clause 9 or our terms."

 

If they can show that it was another company within the same office recruited and it was not them that introduced the candidate to the other company (which is the logical case if they are in the same office) but rather a recruitment agent then you may fail on that head of claim.

 

Hopefully all is clear now.

Regards


DR Lawyer

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