Background
Summary of Council decision:
Four issues were investigated, of which one was Not upheld and three were Upheld.
Ad description
A job listing by IJP Ltd seen on the website www.totaljobs.com stated "Customer Service Assistant … From £15,000 to £25,000 per annum OTE … Job type: Permanent … PLEASE NOTE: THIS IS NOT A DOOR TO DOOR OR STREET OPENING".
Issue
The complainant, who understood that successful candidates were required to recruit additional people, and that earnings were tiered and commission based, challenged whether:
1. the ad was misleading because it did not describe the full nature of the job;
2. the claim "this is not a door to door or street opening" was misleading;
3. the earnings claims were misleading and could be substantiated; and
4. the ad misleadingly implied the post was permanent.
Response
1. IJP Ltd said that the ad described the qualities needed for the job, that is, successful candidates would be working with customers face-to-face.
2. IJP said they were an events based sales and marketing company, so did not deal with street or door-to-door sales.
3. IJP said that the ad stated average earnings of between £15,000 and £25,000 which could be substantiated with invoices. They said that the ad also stated that the job was a commission-only role, paid on completed sales.
4. IJP said that the ad had not stated that the job was permanent; rather, it said that it was a self-employed role.
Assessment
1. Not upheld
The ASA noted that the job was described as a "Customer Service Assistant" which was likely to be understood by potential applicants as a general description of the position which could encompass a wide variety of tasks and interaction with customers. Under the heading "WHO ARE IJP?" the ad stated "… meeting with customers face to face at our promotional events, we are able to build a rapport with customers …". While we considered this information would be better placed alongside the description of the job, we acknowledged that the ad nonetheless expanded on the initial description. The ad also included references to "customer acquisition" and "sales" which provided further details. Because the ad included an overview of the role, we concluded it was not misleading.
On this point we investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
20.2
20.2
Employment marketing communications must relate to genuine vacancies and potential employees must not be asked to pay for information.
Living and working conditions must not be misrepresented. Quoted earnings must be precise; if one has to be made, a forecast must not be unrepresentative. If income is earned from a basic salary and commission, commission only or in some other way, that must be made clear.
(Employment, homework schemes and business opportunities), but did not find it in breach.
2. Upheld
We acknowledged IJP's assertion that they were an events based sales and marketing company and were not involved in street or door-to-door sales. The ad stated "we have customer service openings in our Glasgow office … this is not a door to door or street opening" and we considered potential applicants were likely to view this as an office based tele-sales role, which included some face-to-face meeting with customers at promotional events. We considered the reference to "promotional events" was likely to give the impression that successful candidates would be involved in events, for example, those specifically organised for a particular client or business sector. However, we understood from the complainant that some events were held in shopping centres or on streets adjacent to them. We considered that promotional events would not be seen as akin to a door-to-door or street sales role. However, because the ad did not make clear the nature of the sales environment, we concluded the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
20.2
20.2
Employment marketing communications must relate to genuine vacancies and potential employees must not be asked to pay for information.
Living and working conditions must not be misrepresented. Quoted earnings must be precise; if one has to be made, a forecast must not be unrepresentative. If income is earned from a basic salary and commission, commission only or in some other way, that must be made clear.
(Employment, homework schemes and business opportunities).
3. Upheld
The ad stated that the salary would be "From £15,000 to £25,000 per annum OTE" and we acknowledged that some consumers might understand that the term "OTE" was short for On Target Earnings and that the salary would depend to some extent on performance. We considered that the prominent inclusion of a specific wage range would indicate to most consumers that successful candidates would be able to earn a salary within the quoted range. We noted that IJP said the job was a commission-only role, paid on completed sales. However, this was stated within a paragraph towards the bottom of the ad among additional information such as the minimum age requirements, that a day observing one of IJP's reps was part of the interview process and that no compensation would be provided for that day. We also understood from the complainant that the job was based on a tiered system of earnings and that successful applicants could move up through different levels to increase their salary. This information was omitted from the ad. Notwithstanding this, IJP did not provide evidence that current, similar employees earned the stated salary range.
Because the ad omitted information regarding the tiered structure of earnings, the nature of the commission based salary was insufficiently prominent and we had not seen evidence to support the quoted salary range, we concluded it was misleading.
On these points the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
20.2
20.2
Employment marketing communications must relate to genuine vacancies and potential employees must not be asked to pay for information.
Living and working conditions must not be misrepresented. Quoted earnings must be precise; if one has to be made, a forecast must not be unrepresentative. If income is earned from a basic salary and commission, commission only or in some other way, that must be made clear.
(Employment, homework schemes and business opportunities).
4. Upheld
We noted that the ad clearly stated that the job type was "Permanent". Despite the ad later stating that the role was 'self-employed' we considered that the headline description was more prominent and therefore the reference to "permanent" was contradicted by the reference to the job being self-employed. Because the ad contained contradictory statements, we concluded it was misleading.
On this point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
20.2
20.2
Employment marketing communications must relate to genuine vacancies and potential employees must not be asked to pay for information.
Living and working conditions must not be misrepresented. Quoted earnings must be precise; if one has to be made, a forecast must not be unrepresentative. If income is earned from a basic salary and commission, commission only or in some other way, that must be made clear.
(Employment, homework schemes and business opportunities).
Action
The ad must not appear again in its current form. We told IJP Ltd to ensure future ads made clear the nature of their jobs, to quote earnings precisely and not to claim that a job was permanent if that was not the case.
