Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
An ad on Gumtree.com stated "Marketing & Sales Assistant, Leeds, LS1. Contract type Permanent ... At Green Global, we're diversifying our client portfolio and looking for 5+ people available for an immediate start representing our clients. We need to grow quickly to make an immediate impact on our new clients, so we'll provide product training, which means no experience is necessary! ... We're a privately owned company that specializes in new direct sales & marketing campaigns for our clients ... Marketing & Sales Assistant Requirements: ... * Smart dress and a professional attitude are encouraged because we target potential customers at their residences (this is where they're most likely to use their service) ... * A desire to succeed is essential because we operate in a performance-based industry which means growth and earnings will be performance based. * Full time availability is ideal because the more you put in, the more you get out ..."
Issue
The complainant, whose girlfriend applied for the role, challenged whether:
1. the ad, including the job title, was misleading because it did not make clear that the role was in fact for a door-to-door salesperson;
2. the claim "Contract type Permanent" was misleading and could be substantiated, because the role was self-employed;
3. the ad was misleading because it did not make clear the position was entirely commission based; and
4. the ad was misleading because it did not make clear the hours of work were between 11am and 9pm.
Response
1. Green Global Acquisitions (GGA) pointed out that the ad stated "... we target potential customers at their residences". Whilst this was not as direct as stating "Door-to-door", they believed it made clear that the role involved speaking to customers at their homes. They found that most people who responded to the ad knew the position was field based and involved door-to-door canvassing.
2. GGA explained that when advertising on Gumtree, they had to choose from either "Permanent" or "Temporary". They normally chose "Permanent" as they were looking for people who were interested in establishing a long-term trade relationship.
3. GGA pointed out that the ad stated "... we operate in a performance-based industry which means growth and earnings will be performance based". Whilst this was not as clear as saying "commission-based", they believed it made clear that earnings were based on performance and results. They explained that earnings were based on the number of applications completed, not a percentage of revenue generated, and earnings could vary as some clients provided additional incentives. That was why they preferred to state "based on performance" rather than "commission based". They had found that most people responding to the ad knew their pay would be based on the number of sales completed.
4. GGA said that because the role was self-employed, there were no specific hours of work and individuals were free to choose their own hours and work as little or as often as they wished.
Assessment
1. Upheld
The noted that the ad stated "... we target potential customers at their residences" but we considered this was insufficient in itself to make clear that the position was door-to-door sales. We also considered that the overall impression given by the ad was that it was for a city-centre based marketing position, for example, the references to "Marketing & Sales Assistant", "Leeds, LSI", "Are you ... able to commute to Leeds City Centre", "we're diversifying our client portfolio and looking for 5+ people available for an immediate start representing our clients", "We're a privately owned company that specializes in new direct sales & marketing campaigns for our clients". We therefore considered that the ad, including the job title, was misleading because it did not make clear that the role was in fact for a door-to-door salesperson.
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).
2. Upheld
We understood that Gumtree required advertisers to state whether a role was permanent or temporary in a job and that GGA had chosen "permanent" because they were looking for people with whom they could have a long-term business relationship. However, we considered that consumers would understand "Contract type: Permanent" in the context of a job ad for a Marketing & Sales Assistant role to mean the role was a permanent employment position, whereas we understood that the role was self-employed. The claim was therefore misleading.
On this point, the claim breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
3. Upheld
We noted that the ad did not quote a salary or forecasted earnings. We also noted that the Code required ads for roles which paid commission only to make that clear to consumers. We considered that the claim "A desire to succeed is essential because we operate in a performance-based industry which means growth and earnings will be performance based" was not sufficiently clear that the role paid commission only. We noted GGA's comment that earnings were based on the number of applications secured rather than revenue, but we considered that this still made the role commission-based. We therefore concluded that the ad was misleading because it did not make clear the position was entirely commission-based.
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) 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).
4. Upheld
We noted that the Code required ads for employment not to misrepresent living and working conditions. We considered that because the ad gave the impression that the role was a city-centre based marketing position, consumers would have assumed that the role had normal working hours. We understood from GGA that there were no specific hours and that candidates could work as little or as often as they chose. However, we also understood that the complainant's girlfriend had been told the hours of work were between 11am and 9pm. We considered that ad was misleading because it should have made clear that the hours of work included hours outside normal working hours.
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).
Action
The ad must not appear again in its current form. We told GGA to ensure future similar ads clearly state that a position is self-employed, consists of door-to-door sales and pays commission only. We also told them to make clear the hours of work if outside normal working hours.
