Beware of the Cold Caller Recruiter!

With personal data being freely available to all, many of us have had the experience of a cold call or email trying to sell a product or service. Businesses are also targeted. In this article we examine a case against a cold calling recruitment agency that used data obtained from online CV libraries to make unsolicited contact with our client about potential candidates.

_{The unsolicited contact}

In our client’s case, neither our client nor the candidate in question was registered with the recruiter. The recruiter used a “cold email” directed to our client’s management as an introduction and to seek information as to whether or not our client was recruiting.

Our client exchanged a number of emails with the recruiter as well as telephone calls where a fee of £4,200 had been agreed to be paid by our client once the recruiter had secured a candidate and they had commenced employment. However, our client did not sign any agreement with the recruiter, nor obtained written confirmation of the agreed fee, but continued to engage with him. 

_{The non-existent contract}

Once the candidate commenced employment our client was sent an invoice, however the fee invoiced was more than the figure agreed. When our client tried to dispute the figure the recruiter did not respond and instead increased the invoiced fee on the basis of the late payment terms enclosed with the unissued contract – it was claimed by the recruiter that this was in accordance with the contractual terms.

It was clear upon review of the papers provided to us by our client that throughout the process the recruiter acted in a premeditated manner. They never chased a signed contract, they did not respond to emails regarding the disputed invoices and they did not follow up telephone calls with a confirmation email. 

_{The Statutory Demand}

Although the debt was disputed, our client was in a very difficult position when the recruiter issued a statutory demand for the outstanding invoice which had by then doubled from the initial quote. The recruiter claimed that there was a “contract” and they were entitled to payment of their fees and late payment charges.

Because of the potential risk to the client’s business, they were advised to pay the fee which they agreed to do (£4,200). This left only the disputed sum outstanding (£3,500). This approach was taken to enable the client to make an application to the court to stop any winding up petition on the grounds that this was a genuine commercial dispute which should be dealt with by the court by way of money claim rather than a winding up petition. 

_{The Outcome}

With only the disputed amount (£3,500) unpaid, the recruiter was faced with a legitimate dispute and decided to drop any further action against our client.

This is a good example of the potential risks individuals and businesses face when they do not take care to make sure all terms and conditions, including fees, are agreed and recorded in writing. 

_{How to avoid a dispute?}

Should your business be contacted by a recruiter claiming that they have a potential candidate for you, ensure that you do the following prior to making any agreement.

1. Check that the recruiter is registered with the British Institute of Recruiters if they are not, do not engage with them.
2. Ask to see a copy the recruiter’s terms and conditions, and tell the recruiter that you must confirm that their terms and conditions are agreed first, before any work is carried out by them.
3. Ensure that you read the whole contract, especially the clauses regarding fees and how these are calculated, and whether there are any penalty clauses for late payments.
4. Ensure that any telephone conversations with the recruiter are followed up immediately by an email confirming what was discussed/agreed in the call.
5. Seek legal advice to clarify any points which you are unsure of.
   

This may all seem like common sense. However, many successful business fall into the trap of entering into agreements without first seeing any terms and conditions and are then contractually stuck with those terms.

This advice can be followed across all businesses. In summary always: –

• Ensure that the business is registered with their relevant regulatory body;
• Request the business contract or terms and conditions first when using their services;
• Ensure you consider their fees;
• Ensure you are happy with the contract before signing anything;
• DO NOT be enticed to engage in their services before you have signed their agreement and agreed to their fees; and
• When in doubt seek legal advice.

_{​​More information}

​If you find yourself involved in a commercial dispute then contact our Commercial Litigation Team who will be happy to assist with your query.This article was written by Maria Orfanidou, Solicitor in the Commericial Litigation Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of April 2019.