Are you responsible for the misdemeanors of your candidates?

Placed any nightmare candidates recently? Ever placed a candidate with a dubious past – who has wrought havoc in the role you placed them into. Ever had that telephone call from the client saying “You know Joe Bloggs that you placed with us recently, well it hasn’t really worked out ……” Are you liable for the candidate’s failures? Do you carry any liability for placing candidates who turn out to be acting illegally, unprofessionally or are just plain terrible at their job?

Potentially you do have some responsibility to your client if you place a bad candidate in a role negligently or in breach of contract, but your liability for this can be excluded or limited if your T and Cs are clear and incorporated into your retainer. The most obvious example of this is to ensure that you specifically state it is the client’s obligation to check references and qualifications – and you give no warranties or guarantees about the candidate’s suitability for the role which must be verified by the client. You might also seek to impose a financial limit on your exposure for any given assignment.

Exercise caution though! Excluding and limiting liability is subject to legislation, case law and European Directives. Some attempts to exclude liability will be unlawful and unenforceable, others will be subject to scrutiny by a court and assessed on a ‘reasonableness’ test – that’s a lawyers phrase if ever there was one! Take advice about the extent of your possible liability and how you seek to restrict that in your Terms. And having done that part – make sure the T and Cs are incorporated into your contract for services – more of that in a later blog – because even the best drafted ‘watertight’ terms will be useless if they do not form part of the contract.

Sometimes it is possible to pull the proverbial rabbit out of the hat with candidates who on the face of it appear un-placeable – whether that’s to do with dubious extra curricular activities, disciplinary matters or competence issues - your work is well and truly cut out to find them a job. It can be done – I’ve heard many heroic stories of placement against the odds – but beware. If those chickens come home to roost, your T and Cs might be your life line.

For more information on this subject, please contact dispute resolution specialist Heather Stanford or join the debate on in our eForum on Linkedin