Posting On LinkedIn Whilst Furloughed – Is It A Breach?

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09 April 2020 | Updated 13 July 2020

As around 10 per cent of the private sector workforce is set to be furloughed and temporarily absent from work, is posting on LinkedIn during this time a legal grey area? 

The Treasury has estimated that around 3 million people will be laid off temporarily during the COVID-19 pandemic.

The government have stated that, once you are on furlough, you will not be able to work for your employer. You can undertake training or volunteer, subject to public health guidance, as long as you’re not:

 

• Making money for your employer or a company linked or associated to your employer
• Providing services to your employer or a company linked or associated to your employer

 

But once an employee has been furloughed, surrendered their work email access and stopped officially clocking in – where does this leave connecting and posting on business social platforms such as LinkedIn?  

We take a look at whether posting on LinkedIn could be considered a breach of furlough.

“While LinkedIn promotes businesses, it also provides a personal platform for employees to network, raise their personal profile, post about industry or sector matters of interest, seek other jobs, and promote their employer's business by promotional activity or in some cases by a direct sales approach. It is only where a post is explicitly in these latter categories that we think poses a risk of HMRC saying the terms of the furlough have been breached.”

–Nick Elwell-Sutton

Partner, Clyde & Co

A social or business platform?

 

In many industries, raising your personal and company profile by networking online is a regular part of the working week. According to parent company Microsoft, Linkedin has nearly 675 million professionals engaging with the platform currently.

But in the context of furloughed staff, does LinkedIn primarily function as a business platform or a social one? Consequently, this raises the question as to whether it is ethical for individuals to, intentionally or otherwise, raise their company’s profile by continuing to network and post on LinkedIn whilst furloughed.

Some users have even suggested that access to the social networking platform should be revoked for furloughed employees, to prevent such marketing and publicity. 

 

What does the law say?

 

In the context of UK employment law, “furloughing” does not actually exist. Put simply, it is a temporary period of absence of work where the same rights apply. This includes Statutory Sick Pay, maternity and other parental rights, rights against unfair dismissal and redundancy payments. HMRC will be asking employers to submit information about furloughed employees online, and such claims are thought to be audited carefully.

We spoke to Nick Elwell-Sutton, Partner at law firm Clyde & Co, who specialises in all aspects of contentious and transactional employment law.

He told us that it is pertinent to remember that government guidance surrounding furlough is just that: “guidance” and thas been developed quickly and in fluid circumstances.

“The intent is reasonably clear that employers cannot benefit from ‘work’ conducted by their employees while on furlough leave, and in due course we anticipate the regulations will provide for a specific criminal offence concerning this.

“To the point of whether LinkedIn posts by employees amount to work, as with many legal issues, the answer is: it depends”

 

Only explicit sales posts would pose a risk

 

Elwell-Sutton continued:

“While LinkedIn promotes businesses, it also provides a personal platform for employees to network, raise their personal profile, post about industry or sector matters of interest, seek other jobs, and promote their employer's business by promotional activity or in some cases by a direct sales approach.

“It is only where a post is explicitly in these latter categories that we think poses a risk of HMRC saying the terms of the furlough have been breached.”

However, broadly speaking, it seems that individual posts are unlikely to be subject to strict auditing:    

“By way of example, at one end of the spectrum a post saying the employee had been furloughed or asking for advice on new jobs anticipating a future redundancy would clearly be seen as the employee acting in their personal capacity and for their own ends and without any element of benefit for their employer's business. 

“Contrast that with a furloughed employee's promotional post about their employer's arrangement  for serving clients during lockdown and it is not difficult to see that the employer's business would gain from that.”

 

Keep it personal, and sensible

 

Whilst Clyde&Co anticipates that there will doubtlessly be other grey areas relating to this, with other pressing items on the government’s agenda, common sense dictates that a sensible approach will leave employees under no risk.

“Our view is keep it sensible and to personal posts and that there is no need to revoke access or deactivate accounts."

Picture: As around 10% of the private sector workforce is set to be furloughed and temporarily absent from work, is posting on LinkedIn during this time a legal grey area? 

Article written by Ella Tansley | Published 09 April 2020

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