placement fee repayable.

[niddev]

I used an employment agency, run by a single person, to find a suitable candidate for a job I had . This person found me a candidate who i took on. After two days i had to sack the employee and for various reasons call the police. In addition the employees references were untrue as was the address he had given. Unfortunately I had paid the agency the placement fee too quickly - a week before the fee was due and on the day I took on the new employee. The agency refuse to repay me the fee saying that they had supplied a candidate who I had employed so therefore they had carried out their part of the contract. There were no terms and conditions supplied by the agent and I was in a hurry to get someone on the job so I probably should have enquired further as I never saw any references from the agent
What I need to know is whether in law I have a case to get my placement fee money back. I am furious because the agency obviously had not checked out the candidate they sent me and just want to keep my money.

 

[niddev]

Disappointed that none of you legal eagles can point me in the right direction. I assume that the 1982 supply of goods and services act applies. But how do you prove whether the person supplied was fit for purpose. The agency insist that he was and that we overreacted in involving the police when he was dismissed. No charges are being brought. They say I dont have a leg to stand on to get my fee back but there were no terms and conditions except for a fee structure based on monthly salary. The employee only got two days pay. Any thoughts?

 

[Richie N]

Why didn't you get terms of business? Surely if you are paying a fee then you would want to know your rebate etc.
The agency are at fault if they haven't provided these, however you are also at fault for not requesting them.


What I don't understand is that you paid the fee but the employee only lasted two days, so you would have known surely on the first day if something wasn't right?

Did you pay the fee before the candidate started?
Agencies usually allow anything from 7 to 30 days on their payment terms.

 

[niddev]

It turns out that the lady who runs this agency has no terms and conditions, although she is puting them in place now. She had just started up. I was in a hurry to get someone started so we never checked the references. The employee seemed OK at first and I paid the fee on his first day of work. I could have waited as the invoice said payment 10 days from invoice date which was his start date. It was only on the third morning we realised something was seriously wrong, dismissed him and called the police.The lady from the agency has also refused to provide an alternative employee. Surely she hasnt got a leg to stand on? She should refund me in full?

 

[Richie N]

It turns out that the lady who runs this agency has no terms and conditions, although she is puting them in place now. She had just started up. I was in a hurry to get someone started so we never checked the references. The employee seemed OK at first and I paid the fee on his first day of work. I could have waited as the invoice said payment 10 days from invoice date which was his start date. It was only on the third morning we realised something was seriously wrong, dismissed him and called the police.The lady from the agency has also refused to provide an alternative employee. Surely she hasnt got a leg to stand on? She should refund me in full?

She should have terms in place. The agency sounds like a typical start up that has no experience in the industry.
They should offer a free replacement.

Why on earth did you pay the invoice on the first day when you had 10 days to pay it?

I think this is one for the courts to be honest.

 

[MikeJ]

Whenever I've read an agency's T and Cs, they say something like "If the employee leaves within 6 months, we'll try to find someone else free of charge. But if we can't, then tough".

One of the reasons I don't use agencies.

 

[Billmccallum]

with no terms and conditions in place, and a verbal contract (one assumes), you hired her to find an employee, who you employed. End of contract.

If there are no agreements in place, how can you agrue failure to complete the contract? Where was the breach?

If you paid the fee in good faith then changed your mind, is that her fault?

If you employed someone (either the agency or the employee) without checking references, is that her fault?

 

[FirstClassVirtualOffice]

Agencies by law have to obtain their ID and NI to check they are eligible to work in the UK so if they never got that either you can report them (cant remember who to) for failing to get this, as im sure there's a threat of a fine for not doing so. Ask them to cough up because if they didn't get references they probably didn't check their ID and NI either! Use that as a threat to report them if they don't refund. Also are they a member of any employment agency bodies and if so, report them there as well for not complying.

 

[Richie N]

Agencies by law have to obtain their ID and NI to check they are eligible to work in the UK so if they never got that either you can report them (cant remember who to) for failing to get this, as im sure there's a threat of a fine for not doing so. Ask them to cough up because if they didn't get references they probably didn't check their ID and NI either! Use that as a threat to report them if they don't refund. Also are they a member of any employment agency bodies and if so, report them there as well for not complying.

If they haven't got terms in place, I can't see them being a member of any association. This is one of the basics of recruitment.

It is not a legal requirement for an agency to get references, some provide this service and some don't. It's usually stated in the terms regarding references, however as no terms were agreed, then both parties are at fault here.
Although, I have to say, if you are entering a contract with a company, surely you want to know their conditions. Personally, I think there is more to this than the poster is letting on (perhaps a friend or something that has set up their own agency).

 

[niddev]

No, its quite straightforward. Some one suggested we use this woman who was starting up her own agency and we found it on facebook.When we spoke she said she did reference checks and so on so we thought it was OK. What I want to understand is where the law lies. I say the product/ person she supplied was not satisfactory and we can prove it as we have witnesses to what happened, so she must refund under The sale of goods and services act. She says she provided someone we employed so therefore the contract with us finished at that point. She has no responsibilty for what happened after that point. Who is right ?

 

[Richie N]

No, its quite straightforward. Some one suggested we use this woman who was starting up her own agency and we found it on facebook.When we spoke she said she did reference checks and so on so we thought it was OK. What I want to understand is where the law lies. I say the product/ person she supplied was not satisfactory and we can prove it as we have witnesses to what happened, so she must refund under The sale of goods and services act. She says she provided someone we employed so therefore the contract with us finished at that point. She has no responsibilty for what happened after that point. Who is right ?

It depends on the contract but as one wasn't issued or requested, it's a grey area.
She could say a flat fee was agreed, out of interest how much did you pay for this candidate? Are we talking hundreds or a couple of grand?

 

[niddev]

It wasnt a fortune, £750. But it is the principle involved, we still havent received any references to check. The employee only lasted two days. The agency refuse to supply a new employee and refuse to refund anything. OK we took it on trust and that was an error but if you buy goods that are not satisfactory you are entitled to a refund unless terms and conditions say you are not. Surely?

 

[Richie N]

To me that sounds like a flat fee situation, where no rebate or replacement is offered.
You aren't buying goods but using a service. I can't see them doing a placement and references for £750.

The best thing you can do is send a solicitor's letter asking for a refund, although as no terms were agreed you may not get anywhere.

 

[David Griffiths]

The lack of terms and conditions doesn't help, but I don't think that you are entitled to any refund.

The contract was to supply you with a candidate for employment. The decision to actually employ that candidate was entirely down to you. If the agency didn't find somebody that you wanted to employ, it wouldn't get paid. But it did find somebody, you agreed that the candidate was acceptable to employ so the agency is entitled to payment. If's not their fault that you chose somebody unsuitable.

The service contracted for was to find candidates to interview, and to employ. That service was complete when you employed one of the candidates so there has been no failure on the part of the agency.

Some agencies will give partial refunds on a sliding scale if an employed candidate leaves within 6 weeks. This one didn't offer that.

 

[niddev]

I have just found the Employment Agencies and Employment Businesses Regulations 2003. Regulation 17 states that an agency must provide and agree with the hirer terms and conditions relating to fees, refunds, rebates, and any proceedure if an employee proves unsatisfactory. The client must be supplied with these as soon as is practicable. An agency must not introduce a worker unless it has seen sight of passport, driving licence, birth cert and NI. All info referred to above must be confirmed in writing or electronic form asp or no later than the end of the third business after the hirer was given the information verbally. None of this happened. Under these regulations is the contract invalid?

 

[Richie N]

I have just found the Employment Agencies and Employment Businesses Regulations 2003. Regulation 17 states that an agency must provide and agree with the hirer terms and conditions relating to fees, refunds, rebates, and any proceedure if an employee proves unsatisfactory. The client must be supplied with these as soon as is practicable. An agency must not introduce a worker unless it has seen sight of passport, driving licence, birth cert and NI. All info referred to above must be confirmed in writing or electronic form asp or no later than the end of the third business after the hirer was given the information verbally. None of this happened. Under these regulations is the contract invalid?

This is more or less the case, however you have paid a flat fee in my opinion, where as there is no rebate or replacement.
If you had paid say £1500 or a few grand then you should be entitled to get a refund or replacement but what you have paid barely covers the agency's advertising costs and administration costs.

This is why I never do flat fees or these cheap deals that some agencies offer, purely for this reason, if anything goes wrong after a few days, it's easy to blame the agency.
I do think you should consider the fact that you never requested the terms or agreed them either, to enter a contract without knowing the conditions is a lesson to be learnt.

 

with no terms and conditions in place, and a verbal contract (one assumes), you hired her to find an employee, who you employed. End of contract.

If there are no agreements in place, how can you agrue failure to complete the contract? Where was the breach?

If you paid the fee in good faith then changed your mind, is that her fault?

If you employed someone (either the agency or the employee) without checking references, is that her fault?

Care if duty not fulfilled.

 

[niddev]

I agree to a large extent in what David Griffiths said. However having found the 1973 Employment Agencies Act and the Conduct of Employment Agencies Regulations 2003, I find that the agency did not comply with either simply because the owner did not know that she had certain statutory duties. She is now claiming that she is an introducer of people not an employment agency although on facebook she says she is a domestic staffing agency. I think this seems like one for the little known Employment Agency Standards Inspectorate to investigate. So on that basis I feel we have a case for refund, however on simple contract law David Grifiths is right - she provided candidates for hire, we chose one, employed that person,we paid the agency,contract finished. So can someone make this clear to me - if the supplier has not acted within the law and regulation pertaining to employment agencies, does this make the contract invalid ?

 

[Suzuki]

You're saying she said she does employee references, but in your first post you are saying the references turned out to be untrue... so could you not argue that part of the contract was her checking references. If this hasn't been done then the contract hasn't been fulfilled, and she owes you a refund?

 

[Richie N]

I agree to a large extent in what David Griffiths said. However having found the 1973 Employment Agencies Act and the Conduct of Employment Agencies Regulations 2003, I find that the agency did not comply with either simply because the owner did not know that she had certain statutory duties. She is now claiming that she is an introducer of people not an employment agency although on facebook she says she is a domestic staffing agency. I think this seems like one for the little known Employment Agency Standards Inspectorate to investigate. So on that basis I feel we have a case for refund, however on simple contract law David Grifiths is right - she provided candidates for hire, we chose one, employed that person,we paid the agency,contract finished. So can someone make this clear to me - if the supplier has not acted within the law and regulation pertaining to employment agencies, does this make the contract invalid ?

There is no contract (well in writing) though that's the problem. She never issued one and you never requested one.
I would see this as a flat fee basis where no rebate or replacement applies.
The fee is very low as mentioned and just issue a solicitor's letter for a refund.
Google free solicitor letters and you can get one for free.
She has breached the Employment Agency Standards but she could argue it's a flat fee, saying that she should have still put it in writing.

She has messed up and so have you.

 

[niddev]

You are correct. The address the employee gave was incorrect and had not been checked I guess. Plus we have never seen the two references required or the ID check which we expected and ought to have been sent within three working days of agreeing by phone.

 

[Suzuki]

So write to them asking them to provide those as agreed. When they don't do it, use Money Claim to get the cash back.

 

[David Griffiths]

I have just found the Employment Agencies and Employment Businesses Regulations 2003. Regulation 17 states that an agency must provide and agree with the hirer terms and conditions relating to fees, refunds, rebates, and any proceedure if an employee proves unsatisfactory. The client must be supplied with these as soon as is practicable. An agency must not introduce a worker unless it has seen sight of passport, driving licence, birth cert and NI. All info referred to above must be confirmed in writing or electronic form asp or no later than the end of the third business after the hirer was given the information verbally. None of this happened. Under these regulations is the contract invalid?

That sounds to me as if it covers the situation where the agency provides a worker for you, pays the workers wages and then charges your company on a weekly or monthly basis for the duration of the contract.

I don't know the regulations but are you sure that they apply to the introduction of a candidate for interview?

 

[Richie N]

You are correct. The address the employee gave was incorrect and had not been checked I guess. Plus we have never seen the two references required or the ID check which we expected and ought to have been sent within three working days of agreeing by phone.

It is ALSO the responsibility of the employer to ensure that you have carried out an ID check.
Ultimately if the candidate is illegal it would be your company that would be fined by the Home Office.

You paid a flat fee/introduction fee, the agency introduced the candidate and I can't see you getting anywhere with this unless you take legal action.
Saying that I wouldn't be surprised if they defend it.

I know £750 may seem a lot but it would have probably cost you to advertise the position in a magazine or something so the agency haven't made much margin on this at all.

 

[Spongebob]

I can't be bothered going into the details of this, but the crux is the old adage "Possession is nine-tenths of the law".

She is in possession of the 750 quid. There is very little chance of you getting it back.

If you were still in possession of the 750 quid, she would have very little chance of getting it from you.

You've learned two very important lessons; don't use employment agencies - they are all a bunch of charlatans, and don't pay for anything until you have to and you are 100% happy with it.

 

[Richie N]

I can't be bothered going into the details of this, but the crux is the old adage "Possession is nine-tenths of the law".

She is in possession of the 750 quid. There is very little chance of you getting it back.

If you were still in possession of the 750 quid, she would have very little chance of getting it from you.

You've learned two very important lessons; don't use employment agencies - they are all a bunch of charlatans, and don't pay for anything until you have to and you are 100% happy with it.

Not all, thank you very much!!

 

[Spongebob]

OK Richie, most of them!

I have to say though, I really cannot understand the point of employment agencies. I've taken on dozens of people over the years and by far the most successful appointees have been people known to existing employees or 'friends of friends'. I've had more success simply putting the word out down the pub that I'm looking for staff than I have via an agency.

A couple of times I've stuck adverts costing maybe £30 in the local paper for admin staff and both times had applications from countless excellent prospects. Both people appointed are friends to this day (over 20 years later) and one is still my book-keeper.

The one occasion I used an agency to fill a similar role they sent me a couple of so-so candidates, one of which I took on simply because I was too busy at the time to be bothered looking further. As soon as the bill arrived from the agency though, I sent her back pronto!

A month's salary for tapping into a database and making two appointments - outragious!

Never again...

 

[Richie N]

OK Richie, most of them!

A month's salary for tapping into a database and making two appointments - outragious!

Not quite as easy as that, I wish it was!!