Ad description
Two ads for Home Instead St Albans, a home health care company:
a. A paid-for ad on Facebook, seen in March 2022, for a job as a home care provider in St Albans featured an image with text that stated, “Flexible Working Patterns”. Clicking on the ad took users to the job listing on the Home Instead website.
b. A job listing on the website www.homeinstead.co.uk, for a Weekend Care Assistant in St Albans. Underneath the sub-heading “Care Assistant Job Pay & Benefits”, text stated, “0 Hours Permanent Contract” and “Flexible Shift Patterns Available”.
Further down the page, text stated, “Flexible shifts – whether you’re looking for a couple of shifts a week in the Evening or Evening care work on the weekends, we can offer you shifts so you can work whenever it suits you”.
Issue
Zero Hours Justice, whose client was offered the job of Care Assistant, but was later unable to choose their own shifts, challenged whether the claims of flexible working were misleading.
Response
Harrall Care Services Ltd t/a Home Instead said that they asked employees to share their availability to work periods at interview in which they specified the one-hour slots they wish to work each day. They said that, as such, they offered candidates the ability to work to a pattern that they specified and endeavoured to allocate employees regular work based on that pattern. They said that the ads referred to “flexible working patterns” and that a pattern describes something that happens regularly or on a repeated basis. They said that the flexibility in the role came from being able to specify the pre-determined availability to work pattern.
They also said that their employment contract stipulated employees must be available to work when requested within those periods of availability. They said that their clients needed to have continuity of care, and in order to provide that, employees needed to be available to work during their pre-determined availability periods. However, they also said that employees were allowed to refuse work if they wanted to and that they managed zero hours contracts responsibly.
Assessment
Upheld
The CAP Code stated that employment marketing communications must not misrepresent living and working conditions. Whilst the ASA has accepted that a degree of latitude might be acceptable when employers used ‘aspirational’ claims to describe their workplace, mission statement or ethics, marketers must be able to substantiate objective claims, such as pay or hours, in employment marketing communications.
We noted that both ads referred to the flexibility of working patterns, and we considered that consumers would understand those claims to represent a genuine flexible working arrangement, whereby employees could regularly choose their own shifts to suit their lifestyle, which may include not working for several weeks at a time or working different shift patterns each week. Ad (b) specifically referred to the advertiser being able to offer shifts so employees could work whenever it suited them. We considered that was likely to further the impression that the work would offer a flexible choice of hours on an ongoing basis, particularly in line with the claim that the role offered a “0 Hours Permanent Contract”.We understood that Home Instead required employees to determine their fixed “availability to work” period at the outset of their employment, meaning that employees could not change their shifts on a week-by-week basis and that they were required to always be available during this period, notwithstanding annual leave allowance. We considered that this contradicted the claim “0 Hours Permanent Contract” in the ad, which implied that employees would not have to work regularly if they did not want to. Whilst we acknowledged that Home Instead said employees were allowed to refuse work, we understood that employees were contractually obliged to be available to work on a weekly basis during their fixed “availability to work” period. We also noted that in their response Home Instead said that a pattern refers to something that occurs on a repeated basis. Whilst we recognised that, we understood that the ad referred to “patterns” rather than a singular pattern. We considered that reinforced the interpretation that different shift patterns could be selected by employees when it suited them. In light of those factors, we considered that the reality of the job’s flexibility did not align with consumers’ interpretation of the ad. We therefore concluded that the claims were misleading.
The ads 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),
3.9
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 ads must not appear in the form complained of. We told Harrall Care Services Ltd t/a Home Instead to ensure that any job descriptions were accurate and did not mislead in relation to flexible working hours.
