Background
Summary of Council decision:
Four issues were investigated, of which three were Upheld and one was Not upheld.
Ad description
Claims on www.jobsearch.direct.gov.uk promoted an employment listing. Text stated "Job description: Field Sales Agents 40,000 OTE A great sales opportunity to work from home for PaymentSense, the 7th fastest growing tech company in the UK, and to receive realistic on target earnings of 40,000 a year. Our agents earn competitive commission on ... Chip & Pin, E-Commerce, EPoS and other add-ons ... Sunday Times Tech Track 100 7th Fastest Growing Company in the UK 24th Fastest Growing Company in Europe National Business Awards 2013 UK National Champion 2013 ... The average Commission is 200.00 per contract. Our top sales agents generate 20-30 contracts per month selling this product ... you will qualify for Balloon Payments of up to 10,000 based on deal volumes. Weekly Payments Realistic OTE 40K ...".
Issue
The complainant challenged whether:
1. the earnings claims were misleading and could be substantiated;
2. the job advertised was genuine;
3. the claim "24th Fastest Growing Company in Europe" was misleading and could be substantiated; and
4. the claim "National Business Awards 2013 UK National Champion" was misleading and could be substantiated.
Response
1. PaymentSense Ltd t/a paymentsense.co.uk stated that it was a self-employed role and operated on a commission only basis, so earnings were not guaranteed. They provided a statement of earnings for the three previous years for one of their salespeople, which they considered showed that over £40,000 could be earned; they considered that was a conservative estimate. They provided a monthly breakdown of the earnings over the past 12 months and the average commission value for a seller.
2. They stated that they ran new starter training courses each month, as well as additional courses in locations depending on demand, and provided further details of the regular venues. They provided further details about the average number of starters per course and the number of delegates who had attended the training courses to date.
3. & 4. They provided the league table from the 2013 Media Momentum Awards, showing the top 50 fastest growing tech businesses in Europe. They stated that PaymentSense was listed as number 24. They also provided a certificate for the European Business Awards 2013, stating they were a National Champion; a certificate from the UK Business Awards, stating that they were a National Business Awards UK 'Growth Business of the Year' finalist, and a certificate naming them as the seventh fastest growing on the Sunday Times Tech Track.
Assessment
1. Upheld
The first line of the ad stated "Field Sales Agents 40,000 OTE" and continued "and to receive realistic on target earnings of 40,000 a year". We acknowledged that some consumers might understand from the term "OTE" (short for "on target earnings") that earnings would depend to some extent on performance. However, the reference to "OTE" did not preclude the possibility that a fixed, basic wage would be paid to the employee, with target-based earnings added to that, and we considered that the prominent inclusion of a specific salary at the top of the page would indicate to most consumers that the successful applicant would be awarded a fixed, or partially fixed, annual wage.
We had seen PaymentSense's average commission values and a breakdown of one seller's earnings over 12 months. However, we did not consider one example was sufficient to show that those earnings were representative of the majority of sellers.
Although text towards the end of the ad stated that "The average Commission is 200.00 per contract. Our top sales agents generate 20-30 contracts per month selling this product ... you will qualify for Balloon Payments of up to 10,000 based on deal volumes", we did not consider that these sufficiently made clear that the salary of £40,000 per year was predominately based on and dependent on commission. Because we considered that the ad implied it was a position with a fixed, or partially fixed, salary, we concluded that the earnings claims were 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.
(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
As set out under point 1, we considered that the ad implied the job of "Field Sales Agent" was a position with a fixed, or partially fixed, salary. We considered that consumers would understand it was therefore a fixed employment position for a sales job where employees were able to work from home. However, we understood that successful respondents to the ad were offered a place on a training course, which might subsequently enable them to have the opportunity to earn commission with PaymentSense, depending on their performance. We did not consider that consumers would understand that opportunity to represent a genuine job or fixed employment position, as the ad implied, and therefore concluded that the ad 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.
(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).
3. Upheld
Although the ad's claims did not include punctuation clearly separating the three different awards listed, we understood that the ad claimed that the advertisers had achieved the following: "Sunday Times Tech Track 100 7th Fastest Growing Company in the UK"; "24th Fastest Growing Company in Europe" and "National Business Awards 2013 UK National Champion 2013".
The documentation from the 2013 Media Momentum Awards was headed "Top 50 league Tables" and listed PaymentSense in 24th place. The National Business Awards UK also certified that PaymentSense" was "a finalist of the growth business of the year" in 2013. However, we did not consider that it was clear that the ad's claim "24th Fastest Growing Company in Europe" related to the Media Momentum Awards' league table for 2013 and, in the absence of clarifying information qualifying the basis of the claim, concluded that the claim was likely to mislead.
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. (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).
4. Not upheld
The advertisers had been awarded "National Champion representing the UK in the 2013/14 European Business Awards". We therefore considered that the claim "National Business Awards 2013 UK National Champion 2013" was not misleading.
On that 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. (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), but did not find it in breach.
Action
The ad must not appear again in its current form. We told PaymentSense Ltd to ensure they made clear the precise nature of the vacancy advertised, including how income was earned and to ensure that they made clear when making claims about their performance related to awards they had won.
