Advertising and marketing
All businesses are subject to some restrictions on marketing and advertising in terms of language used, who they can contact and when. This section looks at how these restrictions impact on recruitment businesses.
Please see the information below, but please also see the ICO's Guide to PECR as well as the ICO's Guide to Direct Marketing.
Advertising - I want to advertise vacancies in the paper and on my local radio station. Are there any restrictions?
In every advertisement, in either audibly spoken words or easily legible characters, you must mention the full name of the agency or employment business and whether each position is for temporary or permanent work.
In every advertisement in which rates of pay are given you must state the nature of the work, the location and the minimum experience, training or qualifications which the work seeker would be required to have in order to receive those rates of pay.
You must not:
Advertise your services to provide information about positions unless you have obtained:
- Information about the specific positions of all types to which the advertisement relates (i.e. you have knowledge of positions that are or will be available from time to time), and
- The authority of either the hirer concerned or an agency or employment business which has been given such authority to issue the advertisement in respect of those positions. You should get the authority in writing but if it is only verbal then you should keep a record of the conversation, date, time and who gave the authority.
This is an obligation under Regulation 27 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003. Read the factsheet.
Advertising - Are there any restrictions on advertising our services?
The Conduct of Employment Agencies and Employment Businesses Regulations 2003 require you to mention in every advertisement, in either audibly spoken words or easily legible characters, the full name of your agency or employment business and whether each position is for temporary or permanent work.
In every advertisement in which rates of pay are given you must state the nature of the work, the location and the minimum experience, training or qualifications which the work seeker would be required to have in order to receive those rates of pay.
You must not advertise your services to provide information about positions unless you have obtained:
- Information about the specific positions of all types to which the advertisement relates (i.e. you have knowledge of positions that are or will be available from time to time), and
- The authority of either the hirer concerned or an agency or employment business which has been given such authority to issue the advertisement in respect of those positions. You should get the authority in writing but if it is only verbal then you should keep a record of the conversation, date, time and who gave the authority.
The CAP Code sets out the rules for the content, suitability and administration of non-broadcast marketing communications and although it is a voluntary code the Advertising Standards Authority looks at breaches of it, publishes its rulings and issues penalties for non-compliance.
Advertising - Are there any restrictions on advertising vacancies overseas?
Under regulation 27A of the Conduct Regulations employment agencies and businesses must not advertise a ‘GB vacancy’ (a vacancy for a position, the duties of which will be performed in Great Britain) in another European Economic Area (EEA) country unless:
- It advertises the vacancy in English in Great Britain (England Scotland and Wales) at the same time as it advertises the vacancy in the other EEA country; or
- It has advertised the vacancy in English in Great Britain in the 28 day period which ends on the day that the vacancy is advertised in the EEA country.
This requirement does not apply where:
- The agency or employment business believes on reasonable grounds, that advertising [the vacancy] in English in Great Britain would be disproportionate having regard to the likelihood that such advertising would result in an application from a person with the skill to fill the vacancy.
In other words there is a defence where advertising as otherwise required would not have yielded a suitable candidate with the skills for the role, the agency or employment business may be relieved of this obligation. However, please consider:
- This defence has yet to be tested and this means there is significant risk for employment agencies and businesses if they are unable to show that the defence applies. The REC strongly recommends that, to avoid the risk of the significant penalties and potential reputational damage that could follow a breach of this provision, all vacancies should be advertised as required under this regulation on every occasion.
- Where any decision is made to rely on the defence, agencies must ensure that they keep records in line with regulation 29 (see below) to support the application of the defence.
Advertising on a website covers all places from where the website can be viewed, so the requirement can be met where position is placed on a website which can be accessed from Great Britain England.
Please note that the advertising provision does not apply to agencies and employment businesses when they are recruiting their own (internal) staff as opposed to candidates who will be supplied to or introduced to clients.
Marketing - Are there any implications under the Equality Act 2010 for marketing overseas?
The Equality Act 2010 (the ‘Act’) already prohibits discriminatory acts of this kind on the grounds of a ‘protected characteristic’. One of the nine protected characteristics is ‘race’, which refers to a person’s race, colour, nationality (including citizenship), ethnic or national origins.
The Act contains provisions that apply specifically to employment and recruitment, and impact upon the services provided by employment agencies and employment businesses:
- ‘Employment service providers’ (i.e. employment agencies and employment businesses) must not discriminate against anyone ‘in the arrangements the service-provider makes for selecting persons to whom to provide, or to whom to offer to provide, the service.’ An example of these ‘arrangements’ could be advertising, or other selection processes.
Separate provisions impose similar prohibitions for employers, making it unlawful for employers to discriminate against people in the arrangements they make for deciding who to employ.
This means that if an employment agency or employment business were to solely advertise a UK based vacancy in another EEA country and not in the UK, either when providing their recruitment services or when acting as an employer, this ‘arrangement’ could be unlawful. This is because a work-seeker from the UK is discriminated against, as he or she has not been provided access to the vacancy and is therefore unable to apply.
The scope of the Act also prohibits the use of discriminatory language within job advertisements and the placing of job advertisements in the UK but solely in languages other than English, for example.
Please note that the advertising of vacancies exclusively outside of the UK would also be in breach of the REC Code of Professional Practice which includes Principle 9: ‘Respect for ethical international recruitment’. REC Corporate Members are reminded to abide by all principles of the REC Code when conducting their business.
When Regulation 27A came into force, the REC prepared an update on advertising vacancies (Jan 2015).
Marketing - how do I know if someone does not want to be contacted by us by telephone or fax for marketing our services to them?
In order to indicate a desire not to be contacted they must first register with the Telephone Preference Service (TPS) or Fax Preference Service (FPS). The TPS and FPS have been set up by the Data and Marketing Association (UK) Ltd (“DMA”).
The TPS and FPS are statutory lists of telephone and fax numbers where the ‘subscriber’ to that number has registered a general objection to receiving unsolicited marketing telephone calls or faxes on that number. It is worth noting that mobile telephone numbers can be registered with the TPS as well as landline telephone numbers. A ‘subscriber’ generally refers to the person responsible for paying the telephone or fax bill as a result of entering into an agreement with a telecommunication service provider, for example, British Telecom. Businesses wanting to establish if an individual or corporate subscriber has registered with the TPS or FPS must also register with them.
In order to find out whether a number or numbers are on the list it is possible to check the list in a number of ways. The TPS offers different licences permitting you to check numbers on an ad-hoc or regular basis and the fees are determined by the volume and frequency of numbers checked. Once these numbers have been checked against the list it is valid for 28 days. You should ensure that records are kept to demonstrate any checks.
You can find more information on the TPS website.
Marketing - what is the meaning of ‘unsolicited’?
'Unsolicited’ means uninvited but not necessarily unwanted communications. So if someone has indicated their interest in receiving information from you, for example by ticking a box on a registration form or on your website or giving their contact details after being told that if they do so they will be contacted, your communication with them will not be ‘unsolicited’.
Consent does not extend to the use of ‘cookies’. These are pieces of software used by website operators to track who is using their website and how that website is being used. Regulation 6 provides that such tracking devices may only be used if the website operator makes it clear that a cookie is in operation and what its purpose is so that the website user can object to its use if s/he so wishes.
Marketing - we are always looking for new clients and candidates, are there any restrictions on who I can contact and how?
It is unlawful to make an approach that is unsolicited to individuals, sole traders, limited companies or partnerships, who have indicated that they do not want to receive such contact, for the purposes of marketing your services by telephone or fax.
It is also unlawful to send unsolicited emails or mobile telephone text messages to individuals in their personal capacity, with whom you have no existing customer relationship, unless those individuals have given their prior consent to such contact.
The Privacy and Electronic Communications (EC Directive) Regulations 2003 ("PECR") establish the rules for direct marketing by ‘electronic mail’. Broadly this covers email and mobile telephone text, video or picture messaging. Electronic mail covers “any text, voice, sound, or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service.”
- PECR states that direct marketing by electronic mail may not be sent to any person, including a company, if the identity of the sender of the message has been disguised or concealed or if a valid address to which the recipient can send an opt-out request has been withheld.
- PECR confirms that organisations can contact individuals over the telephone for marketing purposes and you do not need consent for this, provided that the individual is not registered on the telephone preference service. Please see accompanying FAQs below for more information about the telephone preference service.
In addition the Committee of Advertising Practice at the Advertising Standards Authority have established a code of practice for all non-broadcast marketing communications called the British Code of Advertising, Sales Promotion and Direct Marketing (the CAP Code). The Direct Marketing Rules contained in the CAP Code require the explicit consent of ‘consumers’ before marketing by fax, email or text message. The definition of ‘consumer’ covers individuals both in a personal and a business capacity but this code is voluntary rather than statutory. The CAP Code specifically requires employment agencies to state in all marketing communications the full name and contact details of the agency and the fact that it is an employment agency.
Marketing - how does someone register with the telephone Preference Service (TPS) or Fax Preference Service (FPS)?
Individuals can register with the TPS (or FPS) online. If you wish to obtain a license to check numbers, you can do so here. You may also wish to consider a "list cleaner" which can check the numbers for you and the TPS have a list of relevant businesses on their website (however you would need to consider Data Protection implications).
The list is updated every 28 days. Therefore a call to a number listed on the register may not be held to have contravened the Regulations if that number was only entered onto the register during the 28 days preceding the date on which the call is made. This is particularly useful for those who might have checked that the numbers they wish to use are not listed, but do not make the calls or send faxes until some days later when it is actually listed.
Marketing - what will happen if I do call a number that is on the telephone Preference Service (TPS) list?
The TPS or FPS will investigate any initial complaints made to it by anyone whose registration has not prevented a call or fax. They will then report it to the Information Commissioner to determine any action for breach of the Regulations. Complaints can also be made directly to the Information Commissioner. The Commissioner’s powers of enforcement are extensive including powers of entry and inspection.
If there has been a minor breach the Information Commissioner will write a letter to the person informing them that they are in breach of the Regulations and to cease forthwith. If there has been a serious breach the Information Commissioner will serve an Enforcement Notice stating that it is a criminal offence to continue contravening the Regulations. If the person continues to breach the Regulations the Magistrates Court could impose a fine of up to £5,000 or an unlimited fine in the High Court for each breach of the Enforcement Notice.
A person who suffers damage as a result of a breach of the Regulations will be entitled to compensation from the person who caused the damage. However, they would need to prove that they have suffered quantifiable damage, for example the loss of business from a constantly engaged fax line as a result of receiving unwanted faxes. A claim for distress can also be made but again the person would need to prove quantifiable damages. It is a defence to a claim for damages and distress that all reasonable care had been taken to ensure compliance with the Regulations. All compensation claims would have to be made to the county court.
Marketing - I want to send out a bulk email to existing and potential candidates. What do I have to do?
There are two rules in relation to email marketing:
In ALL marketing messages sent by electronic mail regardless of who the recipient is:
- You must not conceal your identity as the sender; and
- You must provide a valid address for the recipient to opt out of further communications.
In any UNSOLICITED marketing messages sent by electronic mail to individual subscribers (i.e. an individual, a sole trader or a partnership in England, Wales and NI) you cannot send such messages without the recipient’s prior consent UNLESS
- You obtained their address “in the course of a sale or negotiations for a sale” (i.e. you found them a job or provided them with candidates for interview
- You are only sending messages relating to “similar products and services” to those which were the subject of the “sale” (i.e. services related to recruitment); and
- When you obtained their address the recipient had been given the opportunity to opt out (free of charge) but did not do so. In every subsequent message they must be given the opportunity to opt out.
It should be noted that in collecting individual’s email addresses or other contact details, Regulation 18 (The Privacy and Electronic Communications (EC Directive) Regulations 2003) makes it unlawful to store an individual’s personal data in a directory without permission and requires that where an individual’s personal data is included in a directory, the individual must be given full details of the directory in question. In addition it is unlawful to charge an individual to take their details off a directory.
Marketing - so if I want to email potential candidates do they have to have given their consent or there must be an existing customer relationship. What does this mean?
The Privacy and Electronic Communications (EC Directive) Regulations 2003 provide that unsolicited direct marketing emails and text messages may not be sent to individuals who are prospective customers unless their prior consent to receiving such communications, for the time being, has been received by the sender in relation to the same or similar services.
What constitutes consent or an existing customer relationship has not been addressed in the Regulations and in reality is likely to differ from sector to sector and case to case. For example, if a candidate has contacted you in response to a job advertisement you may agree to contact them with other job vacancies. An individual merely browsing your website for vacancies is unlikely to be considered an ‘existing customer relationship’.
Marketing - what will happen if I send an email to an individual in breach of the Regulations and the CAP Code?
This will amount to a breach of the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the individual may complain to the Information Commissioner who will take the necessary action to put an end to the breach. This may include a letter asking you to remove someone’s details from your database and to cease any further communications with them or may warrant and enforcement notice. Persistent breaches may lead to a fine after a criminal prosecution. Individual also have a right to bring a county court claim for damages.
The Advertising Standards Authority (ASA) will enforce the CAP Code and impose penalties where they find breaches. This was seen in the case of a Southampton based training provider which sent unsolicited mail to an individual headed “Business Seminars – Telesales and Selling Skills Made Easy” which when opened offered a sales course “for non aggressive people”. The individual objected to the communication on the basis that it was not obvious from the subject heading that it was a marketing communication and secondly that s/he had not consented to receiving it. The CAP Code requires that it be made clear where an email is a marketing communication and that the explicit consent of the receiver has been given to the sender. The training company was fined by the ASA.
Marketing - do we have to put opt-out wording in all our direct marketing emails?
Yes. Both the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the CAP Code state that unsolicited emails or mobile telephone text messages may not be sent where there is no existing customer relationship unless those individuals have given their prior consent for the time being to such contact. An option to opt out must be provided for the consent to be valid.
Where there is an existing customer relationship, companies are allowed to send unsolicited direct marketing emails or mobile phone text messages provided the communication includes text enabling the receiver to opt out of further contact in the future. It is our view therefore that all direct marketing emails and mobile telephone text messages should include this wording.
Marketing - can I send them a letter instead of phoning or faxing them?
While it is not unlawful to send unsolicited mail the DMA has pioneered a voluntary scheme to reduce unwanted approaches. The Mailing Preference Service (MPS) is a non-profit making voluntary body supported by the Royal Mail, the Direct Marketing Association and the Information Commissioner. It allows consumers to register for free preventing unsolicited consumer advertising material being delivered to their home address by post. Mail from businesses with whom they have done business or charities to which they have donated will continue to be delivered. It will not stop mail addressed to “The Occupier”. Names and addresses are then provided to licensed companies and organisations that own, process or use consumer lists. Names remain on file for 5 years.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.