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Is Posting on Social Media 'Work'? Guideline Furlough Ruling

Making posts on social media for marketing purposes may not yield an immediate financial reward, but it is nevertheless 'work'. A tax tribunal made that point in finding that a company director who made sporadic, work-related Facebook posts during the COVID-19 pandemic was not entitled to benefit from the furlough scheme.

The woman ran a small family company that provided, amongst other things, after-school clubs and parent and baby groups. The company's revenue collapsed to zero at the outset of the first lockdown. She was purportedly placed on furlough and the company obtained over £9,000 in government support payments under the Coronavirus Job Retention Scheme.

Whilst the company was in full swing, she and her fellow director spent up to 15 hours a week communicating with clients via social media. That activity reduced dramatically post-lockdown, but she continued to make the occasional post on Facebook with a view to getting back to business in due course.

HM Revenue and Customs (HMRC) subsequently demanded repayment of every penny that the company had received under the furlough scheme, plus tax. It took the view that, when she made the posts, the director was working. She had not ceased all work for the company for the required minimum of 21 days and thus did not qualify as a furloughed employee.

Challenging that decision, she argued that 'work' entails the provision of a personal service for reward, in the form of money or other benefit. The company received no income during lockdown and neither she nor it garnered any reward from making the posts. The number of posts had declined from a flood to a trickle and she asserted that HMRC's disproportionate approach would cause both her and the company considerable financial hardship.

Ruling on the matter, the First-tier Tribunal (FTT) noted that her conduct in making the posts was entirely understandable. What business would not have wished to maintain its reputation during lockdown so that, once the situation returned to normal, it could resume generating income? She took the sensible and prudent course of ensuring that the company was fully ready to re-enter the market.

Dismissing her appeal, however, the FTT noted that the sole issue was whether she was working when she made the posts and questions of proportionality did not arise. In the context of the furlough scheme, it ruled that work is comprised in any activity undertaken by an employee with a view to either directly or indirectly generating income for an employer – either immediately or in the future – or to enhancing its goodwill, brand value or reputation. The vast majority of her posts fell into that category and furlough was therefore unavailable.

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