If an employer receives an unsolicited CV of a suitable candidate from a recruitment agency, this does not automatically mean that the employer may not approach the candidate directly. This is evident from a recent ruling in which the court rejected the agency's claim for compensation.
The employer, a logistics service provider, had posted a vacancy on its website. A recruitment agency sent the employer an e-mail that it had a suitable candidate. The employer expressed interest. A week later, the agency emailed the candidate's resume to the employer and, shortly thereafter, the cooperation agreement with the terms and conditions. The employer did not accept the proposal. Subsequently, the agency discovered that the employer had employed the candidate directly. In the District Court of Gelderland, the agency claimed compensation amounting to a quarter of the candidate's gross annual salary plus a penalty, based on the agency's agreement and conditions. According to the employer, however, no agreement had been reached.
No agreement on agreement
In order to judge whether an agreement had actually been reached, it must be established that the parties had agreed on the main points of that agreement. In the court's opinion, the agency had done no more than offer its services, and the employer had only indicated that he was interested. In doing so, the parties had not reached an agreement on the contract.
The proposal for an agreement that the agency had sent to the employer a week later had not been acted upon by the employer. In doing so, the employer had not given effect to the agreement. Because, in the court's view, no agreement had been reached, the employer owed no compensation to the agency.
Employer had not enriched itself
The agency also claimed damages for unjust enrichment. According to the bureau the employer had been 'enriched' by directly hiring the nominated candidate without paying any compensation to the bureau. The agency had in fact been 'impoverished' because it had received no fee for the mediation. The court also rejected this claim. In the court's opinion, the agency owed any impoverishment to itself because it had provided a service to the employer on its own initiative without being commissioned to do so. The fact that the employer had approached the candidate itself did not alter this judgment. The working method of the agency - forwarding a resume before a contract had been concluded - entailed this risk.
District Court of Gelderland, 27 January 2021, ECLI (abbreviated): 599
Source HR Rendement