An increasing shortage of workers in the healthcare industry has pushed some recruiters to resort to dubious practices in their quest for staff with the right skills.

The Royal College of Nursing reports that the profession is losing around 15,000 workers a year, so hospitals rely heavily on temporary nursing and medical staff to make up the shortfall.

However, qualified temporary healthcare staff are hard to come by and this has sparked a worrying trend among the agencies that supply them.

In recent weeks, Recruiter has been alerted to two agencies that have sought to use unscrupulous methods to secure staff. It appears agencies are trying to get temporary healthcare workers to join them by making unsubstantiated claims in advertisements.

In one case, healthcare locums received false claims by text message that a rival firm had gone out of business, while another agency offered unspecified pay rises for candidates.

Why should the sector have resorted to such questionable tactics? Caroline Staal, operations manager for Holt Medical Recruitment, believes one factor is that the sheer number of healthcare agencies is now so high, prompting a scrap for candidates.

In the late 1980s, Staal estimates that there were just four main healthcare agencies. Now the number is closer to 40.

Staal is increasingly concerned by some of the practices she is seeing in the industry. She often receives calls from locums saying that they have been offered more money in their current job from another agency.

Staal is not opposed to competition, but believes it is wrong when agencies target candidates and say they can stay in the same job for more money.

“All they are doing is poaching candidates without doing any work,” she says. “A candidate will often say ‘Yes’, and this will pushes up pay rates across the profession, resulting in increasing charge rates for clients.”

Poor prognosis

The healthcare sector seems more susceptible than most to ‘fishing’ for other candidates. But the issues this practice raises has implications for the recruitment industry as a whole.

Unscrupulous recruiters who make ambitious pay promises to their candidates play a very dangerous game.

Adverts of that nature could provoke a civil claim for damages, and would also be in breach of the REC Members’ Code of Good Recruitment Practice 2005. The Advertising Standards Authority (ASA) might be interested too.

The ASA can recommend that agencies reword their advertisements if they are deemed to be misleading. If an agency fails to comply, its advertising space can be withdrawn.

In 2001, Gojobsite, part of Jobsite UK, was reprimanded for claiming that it offered “the widest choice of jobs… in all industries” in three posters on its online recruitment website.

The ASA objected as it believed the firm could not substantiate such an ambitious claim.

Similarly, in 2002 Medacs Healthcare Services was asked to withdraw an advert claiming it was “No 1 in the UK” for pharmacists and pharmacy technicians when the firm could not substantiate its claim of the market share.

Whatever the eventual outcome of a misleading advert, it hardly helps to give the industry a good name.

“Recruiters should not be trying to offer the golden goose when they are not in a position to do so,” says Richard Woolmer, a solicitor at legal employment specialists Aldridge Parker. “You must be able to deliver on anything you state in an advert.”

Firms live or die by their presence in the market, but when recruiters go too far in trying to get one up on the opposition, they could easily end up on the wrong end of a hefty compensation claim.

An advert that offers to improve pay rates may, by definition, prompt a candidate to reveal potentially confidential contract details. Legally, such an advert is known as a ‘tort of inducement’.

“An advertisement cannot persuade, induce or procure someone to break a contract,” explains Paul Chamberlain, a partner at Manchester-based law firm Brabners Chaffe Street.

Chamberlain advises recruitment firms on the potential dangers of their adverts. He credits recruiters with having coped well with diversity issues in advertisements, but contends that they are still not fully up to speed with the limits on how to lure candidates.

“I have had clients who, in the dim and distant past, would have been in breach of sex discrimination laws,” says Chamberlain.

“But adverts are increasingly becoming a concern for agencies.” Chamberlain advises agencies to refer to the Conduct of Employment Agencies and Employment Business Regulations 2003, also known as the Employment Agencies Act.

Section 27 says that neither an agency nor an employment business should issue an advertisement unless it has information about specific positions, and that the hirer has the authority to find work-seekers for that position.

On the subject of confidentiality, section 28 says that neither an agency nor an employment business may disclose information relating to a work-seeker except for providing work-finding services, for any legal proceedings (including arbitration), or where the work-seeker is a member of a professional body and the disclosure is made in that context.

Recruiters who place over-ambitious adverts may also face the charge of encouraging a candidate to break the terms of a notice period. This may also provoke a civil claim from an employer. In certain cases, a company can forcibly stop their employee leaving.

“It is up to the existing employer to appeal for an injunction,” says Richard Woolmer. “You tend to see a lot of this in the finance and broking sectors, but it could feasibly happen anywhere.”

Advertisements claiming that candidates have nothing to fear by leaving their current employers could also leave recruiters open to a damages claim, he advises.

Of course agencies want to tantalise candidates with the best opportunities available. But consider how clients would react to blatant candidate-grabbing. They may still be paying the same agency rates but, by giving candidates a bigger cut of client pay, there’s an impression created that the agency will be cutting corners in the long run. And it hardly looks like they are doing the hard work of legitimately sourcing the best people.

With quality candidates at a premium, it is perhaps the agencies which keep their promises and advertise themselves as trustworthy that will gain the long-term rewards from both clients and candidates.