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A visitor to found our advice on employers’ rights when dealing with recruitment consultancies.

“We wondered if you could help us with our employment agency related issue. We had several agencies sending us CV’s for jobs and one agency sent us a CV for candidate ‘X’ but we did not respond to that e-mail/or open the related attachments.

Another agency sent us the same CV. We replied, interviewed and took on the candidate from that agency and paid fees for that agency.

The other agency is now demanding payment. We obviously do not want to be paying both agencies!”

This is a situation which can quite easily happen. This was our advice – in the capacity of agony aunt.  There are two issues:

  1. Agencies must have specific permission from the candidate to send their CV. This is a requirement of the Employment Agency Regulations (The Conduct of Employment Agencies and Employment Businesses Regulations).  They are also in breach of Data Protection legislation if the CV is sent to you without permission.
  2. If you have not agreed to an agency’s terms, either expressly or by your conduct (for example, opened the CV and made direct contact), then it is highly unlikely that they can enforce those terms against you.

You should check with your new employee to whom he/she gave permission to send the CV to you. If it was to the first agency, you must rely on the second issue – i.e the terms were not agreed. 

Alternatively, and probably most fairly, you would have to revert to the agency you paid with clear evidence from your employee that the CV was sent by that agency without permission (i.e. they’d need to be willing to give a witness statement which cannot be contradicted by emails or online applications). In theory, the second agency would then be obliged to return the fee. Good luck!

Of course, if it was the second agency who had permission, then you should have no concerns.

If both agencies were given ‘general’ permission to send out the CV, then you can point the first agency to the Employment Agency Regulations and tell them (a) they did not have express authority to send the CV to you and (b) you did not agree to their terms (if that’s the case of course).

If the candidate gave both agencies specific permission to send the CV to you then you have probably employed a wrong-un! The courts would probably establish first whether you have agreed to either agency’s terms and conditions and would then rule on the issue accordingly taking a close look at the wording of each agency’s terms.

Going forward, when dealing with agencies, it’s a good idea to set out the terms on which you are prepared to deal with them

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