Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A job vacancy ad for a Sales and Marketing Assistant posted on Gumtree stated "Contract type: Permanent. Are you competitive and looking for a place to prove yourself? Want to work in a team environment where you can be challenged? Need to be in control of your future and your earning potential? If so, we want to hear from you! ...The industry we operate in relies heavily on performance. We offer product-training workshops to provide you with the knowledge you need, so no specific experience is required! ... Key Consultancy is a young marketing company with experience representing clients in the telecommunications, entertainment and home repair industries. We promote our client's products through B2B [Business to Business], B2C [Business to Consumer] and event-based sales campaigns in Canary Wharf. We currently have opening for Sales & Marketing Assistants to represent our growing client in the home energy industry ...".
Under the heading "Requirements", claims stated "... Full time availability is ideal since the more you put in, the more you get out. Growth opportunities are based on results and initial earnings are based on completed sales. A solid work ethic, strong communication skills and professional image will greatly increase your chance of success ...".
Issue
The complainant challenged whether the ad was misleading because it did not make clear:
1. the vacancy was for a door-to-doors sales position; and
2. that earnings were based on commission only.
Response
1. Platinum9 said the ad stated they promoted their clients via B2B (Business to Business), B2C (Business to Consumer) activities or events-based campaigns and they represented all three of those markets for their clients at any time. When marketing B2B, they acted as representatives of their clients which did involve face-to-face sales and presentations to new and prospective businesses. They said their B2C activities were on a more personal level because they met consumers where they lived or worked and that their events based campaigns targeted consumers at local shopping centres, train stations or convention centres, for example. They confirmed that the post holder may be expected to carry out all three types of activities and the nature of the post holder's work was dependent on what the client needed.
2. Platinum9 said the ad clearly stated earnings were based on completed sales, which was how successful applicants were paid. They did not use the term "commission" because that meant the percentage allowed to a sales representative or an agent for services rendered. They said they paid the full amount to the sales advisor per completed sales application and that no percentage was given or taken from the sale; post holders were paid per completed presentation via the client.
Assessment
1. Upheld
The ASA noted that successful applicants could be expected to carry out B2B and B2C marketing and events-based campaigns. The B2B and B2C marketing involved face-to-face sales and meetings and that included attending consumers' homes, which we considered was likely to include an element of door-to-door sales. While the ad made clear successful applicants would cover all three types of activities, we understood from the complainant's experience, however, that the position was for a door-to-door sales position. Although we understood the proportion of each activity undertaken by the successful applicant was dependent on the client's needs, we considered nevertheless the fact the role could include door-to-door sales could be a factor which might affect an individual's decision to apply. We therefore considered that information should have been included in the ad and because it was not, we concluded the ad was likely to mislead potential applicants as to the nature of the advertised vacancy.
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).
2. Upheld
Platinum9 had not used the term "commission" in the ad because they believed that meant someone who received a percentage of sales completed and they confirmed that did not apply in this case. We considered, however, the claim "initial earnings based on completed sales" was likely to be interpreted to mean earnings were based on commission only. The ad also described the position as "permanent" which was likely to be interpreted to mean that successful applicants would be salaried employees of Platinum9. Because that was not the case, we considered the claim "contract: permanent" was contradicted by the impression created by the ad that earnings would be on a commission only basis. Furthermore, we considered "initial earnings" could imply that after an initial period, successful applicants would then become a salaried employee. We therefore considered the references to a permanent contract as well as initial earnings based on completed sales were likely to be confusing to potential applicants and subsequently, the ad was unclear about whether successful applicants would receive a basic salary with bonuses for completed sales or receive only earnings based on completed sales. That was information likely to affect an individual's decision to apply for the position and because it was not clear, we concluded the ad was misleading.
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, homework schemes and business opportunities).
Action
The ad must not appear again in its current form. We told Platinum9 to accurately reflect the nature of the advertised position and to ensure they made clear how income was earned for the advertised vacancy.
