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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71051
Experience:  Over 5 years in practice
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I was hoping you would be able to help me with this.

Customer Question

I was hoping you would be able to help me with this.
I run a recruitment agency and I have had a very unprofessional client which is now threating to take me to court.
I placed a nurse at one of their nursing homes within their organisation and she left in 4 weeks. Due to this I amended the invoice as she was still within our rebate sliding scale so they only had to pay half. They firstly ignored all of my phone calls and emails and then confirmed they weren't paying. They asked if I could offer them a free replacement for another candidate then they will pay, so out of good will I agreed to this in an email.
They sent me a cheque for the nurse and I explained as soon as I find another candidate within their area I will send their CV over to them straight away for the free replacement. They have been constantly demanding me for a candidate however I have explained to them time and time again that I have had no nurses come in their area which is the truth. They have now emailed me saying if I don't get them a candidate in 28 days they will take me to court for misleading receipt.
To confirm they agreed to my original terms of business by email however they didn't sign my terms as they were very difficult to get hold of. My terms of business do not state that I offer a free replacement if the candidate leaves.
This is what I said to them when I was chasing payment:
"As discussed once the outstanding balance of £1,213.06 has been paid for invoice SD1038 we are willing to offer a free replacement for Aster Healthcare."
I did not state a time period of getting a free replacement in an email or by telephone.
Do they have a case on me or are they doing a scare tactic on me?
I don't feel that this is fair as they owed me money in the first place and now they are trying to take me to court on something I cant control.
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
Sorry if I am missing the point but surely that does say a free replacement will be offered?
Customer: replied 2 years ago.
yes which I will give them a free replacement when I find them a candidate which I did explain to them however I haven't had any candidates come in their area so I can physically send them any CVs until someone comes in looking for work who would also be interested working at their nursing home. I also didn't state a time period which they are now saying I have 28 days otherwise they will take legal action.
Customer: replied 2 years ago.
*cant physically send them any CVs
Expert:  Jo C. replied 2 years ago.
Did you make that caveat clear? It isn't in the statement you mentioned above.
Customer: replied 2 years ago.
When they first emailed me explaining that they wanted one in 2 weeks I emailed them this:To confirm as we recruit across the UK we have a variety of candidates coming in however they are in different areas at different levels which unfortunately is out of our control. As discussed we can’t put a time limit on when candidates will be coming in within your area and of course as soon as candidates do come in we will send them across to you straight away.
Customer: replied 2 years ago.
When I say as discussed I told them over the phone our process that we cant put a time limit on finding a free replacement
Expert:  Jo C. replied 2 years ago.
Sorry, what you said was this
"As discussed once the outstanding balance of £1,213.06 has been paid for invoice SD1038 we are willing to offer a free replacement for Aster Healthcare."
That does not contain a caveat.
Have you made this offer in writing?
Customer: replied 2 years ago.
I have said that in an email yes however they ignored that email so I called them explaining that we can offer a free replacement when we find someone and then followed that conversation in an email below:Thank you for your time on the phone this morning.
As discussed as soon as we receive the cheque for Invoice SD1038 - £1,213.06 we will get started to find another candidate for St Dominic’s Nursing Home which will be a free replacement for Aster Healthcare.So I have said both of those things in an email.
Customer: replied 2 years ago.
Offering a free replacement isn't in my terms of business though just to clarify
Expert:  Jo C. replied 2 years ago.
They certainly do have a case in misrepresentation. There isn't really any way around this. You made an offer of a free replacement if they paid. What you said doesn't say subject to availability. Even if the second statement applies it is still an offer of a free replacment.
If you go right back to contractual basics though, they received a service for which they have to pay. This nurse worked for them and they have to pay for that.
The amount that they have paid only covers that anyway so whatever you said or did not say matters not as far as that goes.
The question really is what counterclaim they could bring for the cost of a replacement. You offered a free replacement and haven't provided it. You did make the offer subsequent to the contract but it does amount to a variation of the contract. They could claim the cost of finding a replacement to work for the specified period of time I'm afraid.
I'm very sorry if that is bad news.
Can I clarify anything for you?
Customer: replied 2 years ago.
so the worse case they will want the amount that they paid me back? as the nurse who left worked for 4 weeks so they will want a cost of a nurse for that period of time? so it could be £1,213.06What do you think I should do as I don't want to go to court and I might not be able to find them a nurse who will be in their area that will want to work there so shall I just credit them the £1,213.06?
Expert:  Jo C. replied 2 years ago.
I don't think they can get that as they did receive that servicemen.
What they could do is claim for the cost of a replacement.
Customer: replied 2 years ago.
I don't understand what cost that would be though? I mean maybe uniform they have bought for the nurse and her DBS check which costs £50.00? But If I got them another nurse which wouldn't of been free and she didn't leave within 8 weeks I would of charged them £3,272.40So would a cost of replacement be things they would of had to redo for the next nurse like a new uniform and DBS check or the cost of a recruitment fee?
Customer: replied 2 years ago.
If you are able to clarify the above that would be great and I will figure out what to do
Expert:  Jo C. replied 2 years ago.
Your offer above said a free replacement. Therefore you are liable for a free replacement which means somebody to work the remaining period at your cost. That is what free replacement means.
Unless there is a caveat elsewhere in what you said.
Customer: replied 2 years ago.
ok thank you for all your help
Expert:  Jo C. replied 2 years ago.
No problem and all the best.
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