Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
A flyer for All Care, a domiciliary care service, received in July 2017, included the text “paid DBS checks … guaranteed hours” and “Rates of pay £8.30 per hour Monday through Friday”.
Issue
The complainant challenged whether the following claims were misleading and could be substantiated:
1. “paid DBS checks”;
2. “guaranteed hours”; and
3. “Rates of pay £8.30 per hour Monday through Friday”.
Response
1. All Care GB Ltd t/a All Care said that they paid for all care staffs’ DBS (Disclosure and Barring Service) checks and that there was no circumstance in which they did not pay for the check. However, it was a term within the staff contracts that staff would be required to repay their DBS if they left the company within a year of joining. They said in future they would add the claim “terms and conditions apply”.
2. All Care said that the term “guaranteed hours” referred to the company guaranteeing staff a set number of hours over a reference period, which would normally have been a single week. This meant that they would offer staff on a permanent or fixed term contract anything between five and 40 plus hours. Staff members were required to commit to working the agreed number of hours but it did not guarantee a fixed rota or pattern of work each week. They also offered live-in and zero-hour contracts. They explained that all current All Care employees on zero-hour contracts were offered the opportunity to convert to a fixed hours contract and, upon joining, all new employees were offered fixed hours contracts. They provided us with the latest four employment contracts they had offered, all of which were fixed hours. Further, they stated that as the fact that a significant number of the contracts they offered were zero-hour contracts was the standard within the industry –– but that there was a move toward offering more guaranteed hour contracts. They added that they offered more guaranteed hour contracts than their competitors. They said in the future they would add the claim “terms and conditions apply”.
3. All Care stated that the rate of pay – £8.30 – featured in the ad, was always paid for the hours when care work was delivered Monday to Friday, but did not include time spent travelling between clients. They acknowledged that the ad could be clearer and said that in future they would make clear that that the £8.30 only applied to the hours delivering care.
Assessment
1. Upheld
The ASA considered that, in the absence of information to indicate otherwise, consumers would interpret the claim “paid DBS checks” to mean that in all circumstances All Care would have paid for the DBS check. However, we understood that if an employee left within the first year of their employment they would need to repay All Care the cost of the DBS check. Therefore, All Care did not ultimately pay for the DBS checks for employees who left within the first year. We noted All Care’s offer to include the claim “terms and conditions apply”, but considered that was not sufficient to make clear that All Care only paid for DBS checks for employees who stayed with the company for longer than a year. Because the ad suggested that All Care would always pay employees DBS checks, when they ultimately only paid for employees who stayed longer than a year, we concluded that the claim was misleading.
On that point, the ad breached
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
Qualification.
2. Not upheld
We considered that consumers would interpret the claim “guaranteed hours” to mean that all All Care employees were offered paid work for an agreed number of hours. We noted that they offered guaranteed hours contracts which usually ranged from five to 40 hours per week on either a permanent, live-in or fixed term basis to all members of staff. We also noted that in addition to guaranteed hours contracts, All Care offered zero hours contracts, where employees had an employment contract with the company but had no guaranteed working hours in any given period. We considered that, although some All Care employees chose to be on zero hours contracts, because All Care offered all employees the opportunity to have a fixed hours contract, the claim was not misleading.
On that point, we investigated the ad under
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) but did not find it in breach.
3. Upheld
We considered that consumers would understand the claim “Rates of pay £8.30 per hour Monday through Friday” to mean that they would be paid £8.30 for all the hours that they worked and that it included the time they spent, if any, travelling between clients during their working hours. However, we understood that carers were only paid for the hours they spent delivering care and were not paid for travel time between clients. We considered that the ad did not make clear that the hourly rate of pay did not apply to travel between clients.
We therefore concluded that the quoted earnings in the ad were not precise, and that the claim was misleading.
On that 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.
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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) 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 format. We told All Care to ensure that in the future their ads contained all material information, specifically that the DBS cost will be reclaimed if the employee stayed less than one year and that the hourly rate of pay did not apply to travel between clients.
