Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A listing for a job in Southampton, by Praetorian Marketing Ltd, on www.careerbuilder.co.uk, gave summary information about the job in a "Job Snapshot" box, including "Other Pay: £250 - £500 per week, negotiable, OTE". Further text at the bottom of the listing stated "Weekly Earnings: Approximately £250-500 (based on completed sales)".
Issue
The complainant challenged whether:
1. the earnings claims could be substantiated; and
2. the earnings claims were misleading, because they believed they were based on commission only.
Response
1. Praetorian Marketing Ltd (PM) provided copies of invoices from ten of their independent sales advisors in support of the earnings claims, relating to weeks in June, July and September 2012. Nine of the advisors were based in the Midlands, and one was based in Southampton.
2. PM said the definition of 'commission' was "a sum, typically a set percentage of the value involved, paid to an agent in a commercial transaction". They said that, since their independent sales advisors received a flat rate based on each sale, rather than a percentage, they felt it was more accurate to describe the earnings as "based on completed sales". They offered to amend the ad.
Assessment
1. Upheld
The ASA considered that PM should be able to demonstrate, through documentary evidence, that the stated earnings claims could be attained by the average respondent to the ad. We considered that, because PM's sales advisors did not receive a basic salary and were paid only for completed sales, it was likely that earnings could vary significantly from individual to individual, over different times of year, and in different areas of the country. We therefore considered we would need to see evidence relating to the earnings of a significant proportion of PM's sales advisors who were based in Southampton, over a significant period of time leading up to the publication of the ad, in order to determine whether the stated earnings could be attained by the average respondent.
We noted that some of the earnings invoices were for weeks in September
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.
and therefore post-dated the publication of the ad. We considered those invoices could not be used to substantiate the earnings claims made in the ad. We noted that the remaining invoices related to seven individuals' earnings in June or July
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.
only; the lowest amount earned in a week was £220, and the highest was £369. Only one of the individuals was based in the Southampton area, and their earnings ranged from £259 to £312 per week over four weeks. We concluded the evidence submitted did not, therefore, demonstrate that the average respondent to the ad would be able to earn £250 to £500 per week.
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),
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).
2. Upheld
We considered that although the text "OTE" and "based on completed sales" made clear that earnings would vary depending on the number of completed sales made by sales advisors, the wording used did not make sufficiently clear whether sales advisors would be paid only for completed sales or whether they would receive a basic salary with bonuses for completed sales. We considered that was an important factor which was likely to affect an individual's decision to apply for the job, and because it was not made clear, we concluded the ad was misleading. We welcomed PM's willingness to amend the wording.
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),
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).
Action
The ad must not appear again in its current form. We told PM to ensure they held adequate evidence to substantiate earnings claims, and to ensure they made clear when earnings were based solely on completed sales.
