The Myth of 'First Come First Served' in Recruitment - Why Candidate Consent and Compliance Matter

When recruiting for roles, we often find ourselves caught in the middle of competing recruitment agencies, each eager to submit candidates for consideration. A common misconception in recruitment is the idea that the first agency to submit a CV has the automatic right to represent the candidate and claim an introduction fee. However, this ‘first come, first served’ approach is legally flawed and poses compliance risks for employers.

The Importance of Candidate Consent 

Under the Conduct of Employment Agencies and Employment Businesses Regulations 2003, recruitment agencies must obtain explicit consent from a candidate before submitting their CV to a client. This means that any agency sending over a CV without first securing the candidate’s permission is acting in breach of these regulations and, potentially, GDPR.

For HR teams or hiring managers, this is a crucial compliance issue. If you receive a CV from an agency that has not sought permission from the candidate, that submission should not be accepted. Instead, the focus should be on ensuring that candidates are properly represented by the agency they have chosen.

Preventing Unintended Contracts with Recruitment Agencies

A crucial but often overlooked aspect of recruitment compliance is the formation of contracts. Some agencies operate under the assumption that simply sending a CV constitutes an agreement that, if the candidate is hired, they are entitled to a fee. However, this is not necessarily the case.

• If an employer does not wish to accept the terms of a recruitment agency upon receiving an unsolicited CV, they should immediately reject the terms in writing to prevent any implied contractual agreement from forming. Therefore, if you receive a duplicate CV make sure you inform the unsuccessful consultant.

• Organisations should have clear terms in place with recruitment agencies stating that a contract is only formed when both parties have agreed to terms and met all their obligations.

• A contract will not be legally enforceable if it arises from an illegal act, such as the submission of a candidate’s details without their consent, as it breaches GDPR and employment agency regulations.

By having robust internal policies and responding promptly to unsolicited submissions, organisations can avoid unnecessary legal and financial disputes.

Establishing a Clear Recruitment Policy

Creating a clear recruitment policy is essential for small business owners looking to mitigate issues when faced with multiple submissions of the same candidate’s CV from different recruitment consultants.

The first step in establishing an effective recruitment policy involves addressing how to handle duplicate submissions, guidelines on how to inform consultants about duplicate submissions and what action to take regarding the candidate being considered.

An Applicant Tracking System can be useful in monitoring which CVs have been submitted by which agency and when. By doing this, businesses can easily identify if the same CV has been submitted by multiple recruiters, thus allowing them to manage communications transparently without bias.

The ‘Effective Cause’ Principle in UK Case Law

Beyond compliance, there is a legal precedent known as the "effective cause" principle, which UK courts apply when determining which agency is entitled to an introduction fee. This principle does not simply recognise the first agency to send a CV but instead considers whether an agency played an active and meaningful role in introducing the candidate to the company.

Two key cases illustrate this:

1. Wallace Hinds and Associates v Lastolite [2000] – The court ruled that an agency could not claim a fee simply for submitting a CV if they did not play a substantial role in placing the candidate. The decision reaffirmed that an introduction fee is only due if the agency was the effective cause of the placement.

2. Law Staff Legal Recruitment Limited v Just Costs Limited [2009] – The court held that simply sending a CV did not create an entitlement to a fee. The agency had to prove that it was responsible for bringing about the employment, rather than merely being the first to submit details.

If a recruitment consultant has not spoken to the candidate about the role, obtained their consent, or meaningfully engaged with them regarding the position, they cannot claim to have been the effective cause of the introduction. Therefore, unless an agency can demonstrate that they had a genuine, prior relationship with the candidate regarding the specific role, their submission is invalid and should not be entertained.

The principle also establishes that a recruitment fee is only payable when an agency has actively introduced a candidate for a specific role, as demonstrated in QED Legal LLP v Fisher Jones Greenwood LLP [2015]. In this case, a recruitment agency sent an unsolicited CV to a company, but by the time the employer enquired about the candidate’s availability, they had already accepted another position. Five months later, the candidate independently applied for a role at the company and was hired. The agency argued that a contract had been formed and that they were entitled to a fee, but the court ruled that the chain of introduction had been broken, meaning no contractual obligation existed.

This ruling directly contradicts the standard terms used by many recruitment agencies, which often state that a fee is payable if a company hires a candidate within a set period—typically up to a year—after the CV was originally submitted, regardless of the circumstances. The case reinforces the fact that simply submitting a CV does not, in itself, entitle an agency to a fee unless they can demonstrate that they were the effective cause of the candidate’s employment.

Avoiding Poor Recruitment Practices

Unfortunately, some agencies engage in unscrupulous practices, such as ‘speculative CV sending,’ where they distribute candidate CVs without consent in the hope of securing a placement. This not only breaches regulations but can also damage the candidate experience and create unnecessary disputes over introduction fees.

To ensure best practice in recruitment, hiring managers should:

• Verify Candidate Consent – Always confirm that a candidate has agreed to be represented by a specific agency before considering their CV.

• Reject Unauthorised Submissions – If an agency has not obtained permission from the candidate, do not proceed with their submission.

• Adopt a Compliance-Focused Approach– Ensure that recruitment processes align with both legal requirements and ethical standards.

• Have Clear Agency Terms – Set out in writing that contracts will only be formed when both parties have agreed and all legal and regulatory obligations are met.

• Work with Trusted Agencies – Build relationships with reputable recruitment partners who prioritise compliance and professionalism.

Conclusion

The idea that ‘first come, first served’ applies in recruitment is a myth that can lead to serious compliance risks and ethical concerns.

Hiring managers must ensure that candidate consent is always obtained and that agencies operate within legal and ethical boundaries. By rejecting unauthorised CV submissions, setting clear terms with recruitment agencies, and understanding the ‘effective cause’ principle, organisations can avoid recruitment pitfalls and maintain a fair and legally compliant hiring process.

If you’d like to discuss best practices in recruitment or need advice on dealing with conflicting agency submissions, feel free to get in touch.