When two recruitment agencies claim a candidate introduction

23rd October 2023

This situation arises where a candidate is introduced to a “Hirer” by 2 separate Agencies. There is no doubt a Hiring company will not want to pay both Agencies. So how can this be avoided? In this article, Dispute Resolution specialist, Peter Kaye, explores what both the Agencies and Hiring company should do.

The first thing to do is to review the applicable contracts with the Agencies themselves. If, of course, there is no contract at all then the Agency would struggle to justify a charge in any event.

Let’s assume that both Agencies have sent the Hirer their Terms and Conditions, and these Terms are considered incorporated into a binding contract. This is a whole separate issue on the question of whether the Terms are incorporated but this will be considered later.

The Hirer should be entitled to accept one of the Agencies who will then arrange interviews and assist in the process of the Candidate being taken on. The best scenario would be that the contract from the 2nd Agency is formally rejected but even if this were to occur it is not definitive that this would be the end of the matter. It is often the case that that Hirers do not actively reject duplicate introductions and leave the situation in abeyance. One often thinks that the first Agency to introduce the candidate would  “win” this argument. This is not always the case.If this were to be the accepted and recognised procedure, then this would only encourage bad practice by some Agencies to simply send out by bulk mailshot random CVs of candidates with their Terms and Conditions to all and sundry. (This may also breach data protection regulations)

What could often be the case is that random emails could be in someone’s inbox or “junk mail” and never picked up or perhaps sent to a HR department and not the particular individual responsible for the hiring process. If this occurred, could that Agency then realistically say it is entitled to a fee if it had done nothing more than circulate an email that was never acted upon, or perhaps even seen? Meanwhile another Agency may have been far more pro-active in organising for a candidate to meet with the Hiring Company , organising interviews and perhaps assisting in the negotiating of acceptable terms through to concluding the entire process.

It is as a result of this scenario that the Courts are generally reluctant to accept the “first to introduce” policy. Instead, the Courts adopt the “effective cause”  principle. This has not only been adopted in recruitment situations, but also particularly in relation to estate agents’ contracts and other agency relationships.

So, what does a court look for, or what should an Agency do to try and protect itself in these circumstances?

The Court would look for which Agency played the effective role in the ultimate employment of the candidate. This is the more logical and practical approach. The “effective cause” approach will depend on the individual facts of each case, so there is not always a simple and obvious answer until the background is fully considered. However, it should be fairly obvious that the Courts will not want to award a fee to any Agency when it has simply circulated a CV and done nothing else whereas the other agency had “pulled out all the stops”  to ensure the engagement of the candidate with the Hiring company. The Agency that has been pro-active in effecting the Hire would usually be the one that would safeguard itself in relation to the payment of its introduction fee .

Can an Agency seek to override the “effective cause” principle by contractual agreement?

The answer is yes. Agencies can and do seek to adopt specific clauses in their Terms and Conditions and Hiring companies should perhaps be aware of  these Terms if they are to avoid having to pay fees twice. The reality is that it is common for Hiring companies not to read the fine detail of Agency Terms until an issue arises, but this really is a risky policy to adopt. Certainly, if the relevant company has a HR department then it should be alive to these types of scenarios.

The starting point must be to review whether an Agency’s Terms are actually incorporated in a formal and binding “contract”. Just because speculative Terms are sent by email with a CV, which states that by reading the CV the Terms were deemed to be binding, does not necessarily mean that they are actually binding in the eyes of the law. The position would depend upon the individual facts of the case. If an Agency has a clause which purports to override the “effective cause” rule this does not mean the position cannot be challenged  and the entire situation should be reviewed . Agencies whilst usually being quite robust in wanting to pursue “introduction fees” if faced with a credible argument in response, they may be willing to resolve the matter by a negotiated settlement .

What should an Agency do?

If you are the Agency, you will want to ensure you have well drafted Terms and Conditions which provide for a clause overriding the “effective cause” principle. It is crucial that the Agency ensures that their Terms are properly incorporated in a binding contract with the Hirer at the outset and before CV’s are circulated. The caveat to this is that if you have such an “overriding clause” and a Hirer picks up on this, then they may ask you to remove this clause and this in turn could potentially damage your future commercial relationship.

Best practice would be to ensure that any candidate introduction is followed up, try and organise interviews, and manage the whole recruitment process of a candidate. This is the best way to ensure you would be paid.

As a Hirer what should you do?

If speculative CV’s and Terms are sent to you perhaps by Agencies you do not regularly use, then you should promptly reject those Terms. This may avoid ambiguity further down the line. If you do use an Agency regularly or even if you do receive speculative Terms, you should read the relevant Terms and ensure that if there are “introduction clauses” which deal with the points set out above, then you need to make an informed decision as to whether you are willing to accept them, or whether you should go back to the Agency asking for them to be removed. The Agency may say that if their services are used  regularly then there should be no issue – it may only be a problem if a Hirer also  receives random CV’s which are then acted upon.


As an Agency, ensure you have well drafted terms and get advice as to the best method to ensure your terms are incorporated in a contract. As a Hirer, always read the Terms carefully to ensure you understand them so you can make informed decisions. If speculative CV’s are not being acted upon—reject them promptly!

For more information contact our Dispute Resolution team on 0161 832 3434.


Recruitment Contracts – The importance of terms & conditions


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