Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A job vacancy placed by S5 Marketing Ltd on the website www.reed.co.uk was headed "Calling all FUN, OUTGOING, GUYS & GIRLS! Immediate Start!". A box beneath contained brief details of the job, including "£10,000 - £18,000 per annum, negotiable, OTE" and "Job type: Permanent, full-time". The main body of the ad stated "A great opportunity exists for a graduate or junior marketing assistant to join a strong, energetic - fast growing company! ... we have a range of opportunities for graduates to step up and impact future business plans. With a philosophy built around coaching and developing to become key players in the business, and a focus on a culture of building relationships with customers, Strategic Five Marketing is a great place to start your career.
So what's in it for you? In a word, opportunity. The opportunity to learn from one of the UK's most humble business success stories, to join a company that fosters training, development and on-the-job experience, and of course, the opportunity to get your start with a group of people who know what it takes to succeed.
We are now looking for a recent grad or anyone looking to get into Marketing to join our Graduate Program based in Birmingham. The program begins with a hands-on opening working and meeting with our customers' clients face to face. You'll have the opportunity to be mentored by the manager of Strategic Five Marketing and follow a structured product training and development plan to give you every opportunity to succeed ... You'll be focused on continuing our tradition of personalised service and add value to our business. This is a self employed opening. All earnings are based entirely on completed sales or applications, with average earnings up to 500 per week."
Issue
The complainant challenged whether the ad was misleading, because it did not make clear:
1. that the vacancy was for a door-to-door sales position; and
2. that earnings were based on commission only.
Response
1. S5 Marketing Ltd, t/a Strategic Five Marketing, (Strategic Five Marketing) explained that they were an outsourced sales company that acquired new customers for clients in the non-profit industry in a variety of ways. They said the role involved sales advisors meeting with customers in their homes. The customers would not previously have had any contact from advisors working for Strategic Five Marketing, but may have existing relationships with the clients by whom they were outsourced. They said they tried where possible to state in ads that successful applicants would be required to meet with customers face-to-face, but would ensure that future ads stated that advisors would meet with customers in their own homes.
2. Strategic Five Marketing provided copies of three invoices submitted to them by sales advisors, which showed weekly amounts of between £236 and £363, and which they said demonstrated that annual earnings would be up to £18,000. They stated that a series of options could be chosen from drop-down lists on the website on which they had advertised the role, and that they always chose the most relevant option, giving an indication of earnings as close as possible to the current earnings of many of the sales people they worked with. They were required to select a pay band on the website, but all of their ads stated that all earnings were weekly and based entirely on completed sales. They also pointed out that the ad contained the text "This is a self employed opening". They considered that those references to the type of income would inform interested consumers that the ad was for a commission-only role.
Assessment
1. Upheld
The ASA understood that Strategic Five Marketing outsourced their sales to advisors working on a self-employed basis, and that the role involved meeting with customers in their own homes. However, the ad stated that Strategic Five Marketing was recruiting for a full-time, permanent member of staff who would join a structured "Graduate Program". It also referred to the company as being "a great place to start your career", and stressed that the role offered the opportunity to develop a range of professional skills. On that basis, we considered that consumers would understand the role to be office-based and to entail working in close conjunction with others within the company, and would not expect the vacancy to relate to a self-employed door-to-door sales position. We noted that the role included meeting customers in their own homes and had not seen evidence showing that other elements of the position were consistent with the impression given by the ad. We therefore concluded that the ad misled as to the nature of the vacancy.
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.
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).
2. Upheld
We considered that most consumers would expect a permanent, full-time role in a structured graduate training programme to relate to a salaried position, rather than one for which earnings were based on commission only. We noted that the short summary of the ad at the top of the page stated "£10,000 - £18,000 per annum, negotiable, OTE". 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 range at the top of the page would indicate to most consumers that the successful applicant would be awarded a fixed annual wage within that bracket. Although we noted that text towards the end of the ad stated "This is a self employed opening. All earnings are based entirely on completed sales or applications, with average earnings up to 500 per week", we considered that that was insufficiently prominent in relation to the claim "£10,000 - £18,000 per annum ...", and particularly given the likely expectation of consumers interested in a permanent, full-time, office-based role in a structured training programme.
We understood that the summary information at the top of the ad had been presented as a result of the website design, which presented a number of drop-down boxes, and that Strategic Five Marketing had chosen what they considered to be the best match for the advertised vacancy, including in relation to salary. We considered that, if it was not possible to make clear the exact nature of the income for the advertised vacancy within that summary, clear and prominent qualification should be given immediately above or below, and that the ad should make clear the exact nature of the role on offer, in order to avoid ambiguity regarding the nature of the income associated with the role.
Because we considered that the overall presentation of the ad implied a position with a fixed, or partially fixed, salary when that was not the case, we 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.
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).
Action
The ad must not appear again in its current form. We told S5 Marketing Ltd to ensure they made clear the precise nature of the vacancy advertised, including how income was earned.
