Recruitment is competitive. Clients and candidates often use multiple agencies. It is common for the same candidate to be submitted by different agencies, whether for the same or different roles, or even speculatively.

Right to Represent – Candidate choice

In these situations, recruitment agencies often mention the concept of having the ‘right to represent’ the candidate. Ideally, a candidate should have the freedom to choose which agency can process their personal information and act on their behalf. However, the client’s preferences often carry more weight. For instance, if a candidate prefers agency A, but the client insists on agency B, the candidate may have limited options.

An agency can request a ‘right to represent’ confirmation from the candidate, which would be useful to demonstrate compliance, but it alone won’t determine which agency would receive the fee.

Who is entitled to the fee?

Fee entitlement will usually come down to the terms in place.  Good recruitment terms will offer a recruiter wide protection regarding the vacancy and time frames. However, Hirer and RPO terms are commonly less favourable. Some address ownership on a vacancy-specific basis, and/or depending upon who submitted the candidate first. Some terms will allow the client complete discretion to determine who but others will attach compliance conditions, often including evidencing a ‘right to represent’. It is therefore essential when entering into terms produced by hirers or RPOs that anything that could be a potential barrier to a fee is addressed upfront.

Place your business in the best position

• Standard T & Cs  – Make sure that your standard terms offer you the best possible protection. The cost of a review or new terms is less than just one fee saved by having strong protection
• Review Hirer/RPO terms  – check for anything that could present a barrier to fee protection; steps required by the contract, e.g. a specific right to represent
• Ask candidates – check with candidates if they are working with other agencies and encourage transparency
• Operate compliantly – make sure that the steps required by the Conduct Regs are being followed, and that you can evidence this in the event of a dispute or complaint to EAS
• Get advice – if there is a dispute, get advice from specialists who understand recruitment, and how compliance and contracts fit together

We offer bespoke business terms for agencies, which have never to our knowledge been beaten in a court of law. Nothing is more emotive to a recruiter than having an unnecessary dispute or losing fees when the work has been done. Our terms address the issues, minimise management and are highly effective.

For more information, or rapid advice on any recruitment or employment law matter, please contact us on 01273 236 236 or email us at info@lawspeed.com.