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For further information or assistance on drafting terms and conditions of business please contact any of the following in our Employment Law Unit:

Nicholas C J Lakeland
ncjl@silvermansherliker.co.uk

"We introduced a good candidate to our client, the candidate was successful at interview, then out of the blue we were told that the position had been filled. The next thing that happened our candidate disappeared and we got word that he had actually been given the job "behind our backs" to escape payment of our recruitment fees.”

Another "BOBs" (behind our backs) case.

Unfortunately, the above story is becoming increasingly common and more clients are telling us of a BOBs scenario. Driven by the need to cut overheads, less scrupulous employers are attempting to escape payment of your recruitment fees when they are allowed the opportunity ....and many are allowed to get away with it because the legal basics have been overlooked.

Terms of Business

The purpose of your terms of business is to set out clearly the contract between you and your clients. It will be your main source of attack and defence.

The main thing to remember is
to ensure that your terms and conditions of business are clearly drafted with your fee scale set out

The reality is, however, that the recruitment industry moves quickly and this means using e-mail.

If you are in a hurry and you wish to send out a Curriculum Vitae as an e-mail attachment, make sure that your terms and conditions form an attachment next to the Curriculum Vitae, or better still paste them into your e-mail for all to see. You will then have to ensure that these e-mails are not deleted in case they become vital pieces of evidence; it would be best to keep a paper file evidencing the incorporation of your terms given their importance when it comes to litigation.

Getting Proof

If you suspect that one of your candidates has been recruited behind your backs and your client will not admit to engaging them, some preliminary investigation may need to be undertaken to prove it. This needs to be discreet. We usually instruct enquiry agents who will provide us with the evidence that we require. At your instruction, we then write to your client informing them of their obligations and demanding immediate payment. Depending on the evidential and legal position, we threaten County or High Court or Insolvency proceedings. If this does not bear fruit we would then most likely launch County Court proceedings after carefully examining the issues

boldly. Also, the BOBs avoidance wording can be usually beefed up. Often the applicable terms and conditions leave the agency wide open in any dispute or court proceedings. When did anyone last look at your terms and conditions? It may be that your terms could do with updating and we would be happy to advise on terms and conditions of business which are most likely to bear up to the scrutiny of litigation.

Incorporation of your Terms

Another basic point, often overlooked, if your terms and conditions are not brought to your client’s attention properly prior to contracting with them you will not be able to rely on them. You may then have to rely on a course of dealing or implied terms, or still worse, be unable to demonstrate that you have a contract on your terms at all.

Terms and conditions printed on the back of your invoices are all right but may not come to the attention of your client. If so, it may be difficult to prove that they have been incorporated into your contract. Many clients try to rely on the fact that the terms and conditions have appeared on the back of invoices in the past. This is always a mistake. The best course of action is to ensure that written terms are sent out for signature by your clients prior to introducing your candidates to them.

and preparing draft witness statements where necessary.

Remedies

The litigation department at Silverman Sherliker LLP drives litigation on behalf of its clients in a determined but balanced and commercial manner. The Civil Procedure Rules which came into play in April 1999 placed new obligations upon litigants and lawyers alike to seek to negotiate settlements wherever possible. You can expect all correspondence be accompanied by a line of without prejudice correspondence designed deliberately to minimise risk and maximise your prospects of recovering costs, more particularly so if the matter should proceed as far as a trial.
We will always advise you to close down litigation where it is commercially expedient to do so. Often this means applying for Summary Judgment where your case is strong or proposing Alternative Dispute Resolution (mediation is far cheaper than a trial) where the outcome of a trial is not certain.

Instructing us

In the first instance we will always be happy to take your call or e-mail on a no obligations basis. The litigation department at Silverman Sherliker LLP tackles all forms of commercial litigation and we can assist with many contractual and property disputes besides the recovery of recruitment fees.