Nov 13, 2020

Is my employer putting me at risk by making me work from home?

Words by Bruce Bratley and Angus Evers

With more employees than ever working from home, the regulation of waste produced by these ‘work from homers’ is unclear. Are employers and employees at risk of breaking the law when it comes to business waste disposal at home? Bruce Bratley, CEO of First Mile, and Angus Ever, Partner at Shoosmiths law firm address the current regulations for businesses and households.

Duty of Care for Waste

Anyone who produces waste must take all reasonable steps to ensure it is managed properly, as set out in section 34 of the Environmental Protection Act 1990. A breach of this duty of care could lead to an unlimited fine if you are convicted.

Businesses have to pay for the separate collection of their waste and ensure they have discharged their duty of care. However, if you run your own business from home or, more recently, spend all (or most of) your time as an employee working from home, what are the rules? Who should pay for the collection of your waste and, if you are an employee working from home, should your employer take responsibility for the waste you produce in carrying out your work for it?

The situation for businesses operating from home was not especially clear before the Covid-19 pandemic and now the rules are even less clear for employees working from home.

How can the Duty of Care be complied with?

Whether you are a business or a householder, you must always take care to ensure you are discharging your Duty of Care obligations when your waste is collected; this includes:

  • taking steps to prevent waste from escaping from your control;
  • storing the waste securely and safely;
  • preventing it from causing environmental pollution or harming anyone; and
  • describing the waste you are transferring on a document called a ‘waste transfer note’ (WTN) (or a ‘consignment note’ in the case of hazardous waste).

Householders

If you are a householder, you are required to take reasonable steps to check that people removing waste from your premises are authorised to do so and that they have undertaken to dispose of it properly.

You can do this by checking that the person coming to collect the waste has a waste carrier licence issued by the Environment Agency (or by Natural Resources Wales in Wales). You can check online here (for England) and here (for Wales).

If you are using your council for regular services, such as a weekly bin collection, you will not need to do these checks and will not need a WTN.

If you are hiring a private contractor to collect bulky waste or DIY waste, or to remove junk, you will need to obtain a WTN from them. The same applies to collections of hazardous waste (such as waste paint) arranged through your council – you should obtain a consignment note.

Businesses

The Duty of Care for businesses is the same as for householders, but businesses need to document every waste collection with a WTN or consignment note. This can be a note per collection, or if it is a regular collection an annual WTN (sometimes called a ‘season ticket’ or ‘passport’).

It is a legal requirement for all businesses in the UK to keep WTNs for 2 years (3 years for hazardous waste consignment notes) and you could be asked to produce them at any time by a regulator.

Businesses based at home are no different and they should also have WTNs documenting how they have disposed of their waste. First Mile estimates that there are over 2 million home-based businesses in the UK.

Home-based businesses

Many home-based businesses consist of one person producing very little waste. However, from a legal perspective, these businesses must still comply with the Duty of Care in the same way as businesses operating in commercial premises. Any waste produced by the operation of the business is classed as commercial waste and could include post, damaged or scrapped office furniture and IT equipment, and even floor sweepings from a home office.

Some local councils threaten draconian sanctions against home-based businesses that mix their business waste with their domestic waste or take it to a household waste recycling centre, although in practice they rarely take enforcement action against small home-based businesses that produce small quantities of waste like waste paper. However, some home-based businesses produce significant amounts of waste (for example, catering businesses that produce food waste) and local councils expect these businesses to have a commercial waste collection service in place.

Even if your home-based business produces very little waste, it would be prudent to get an annual WTN for specialist office waste streams such as confidential paper, office furniture, toner cartridges and old IT equipment.

What if I am an employee working from home due to Covid-19?

The increase in the number of employees of larger businesses working from home since March 2020 as a result of the Covid-19 pandemic has created an additional layer of uncertainty. As reported in the Sunday Times recently, the possibility that some home workspaces may be used exclusively for business purposes by employees working from home has not escaped the attention of other authorities such as HM Revenue & Customs.

Does this increase in the number of employees working from home, and the possibility that many of these employees may continue to work from home once the Covid-19 pandemic finally subsides, require a reconsideration of the rules on commercial waste collections for home-workers? Are employers that require or allow their employees to work from home unwittingly exposing those employees to compliance risks relating to the waste Duty of Care, and passing commercial waste collection costs to local councils?

Working from home as an employee may take many different forms and the support given to employees by employers may vary from minimal to the full provision of home-working equipment. For example:

  • If employers provide their home-working employees with IT equipment such as laptop/desktop PCs, monitors, printers and scanners, office furniture such as chairs, and office stationery such as paper and printer cartridges, all of which are to be used exclusively for business purposes, then any of those items that becomes waste would arguably be commercial waste.
  • If home-working employees use their own personal equipment for business purposes as well as personal use, is that equipment domestic waste or commercial waste at the end of its life? Does the answer depend on what the equipment is predominantly used for?
  • What about employers who give home-workers allowances or loans to buy equipment for home working (which therefore belongs to the employee and not the employer) – is that equipment domestic or commercial waste at the end of its life?

In reality, most employers will want any end of life equipment used by home-working employees to be returned to them (particularly IT equipment – see below), so those employees are unlikely to have to arrange for a separate commercial waste collection. It is also likely to be very difficult for a local council to prove that any home office equipment is being used exclusively or predominantly for business purposes and should therefore be disposed of as commercial waste. That said, there might be some other compliance risks to consider.

Other compliance risks

There are other waste-related risks for employers to consider while employees are working from home and employers should ensure that they have appropriate data management protocols in place for the following:

  • End of life IT equipment, including mobile phones, will probably contain sensitive data, which should be carefully and confidentially destroyed.
  • Documents (whether electronic or hard copy) and digital media often contain confidential information or data.

If this confidential information ends up in the wrong hands, it could amount to a breach of the General Data Protection Regulation. Employers of home-working employees should therefore consider how to securely collect and destroy confidential hard copy documents and electronic media from those employees.

Confidential shredding services: https://thefirstmile.co.uk/confidential-paper-recycling

Secure IT Asset Disposal & Data Wiping: https://thefirstmile.co.uk/service/confidential-data

Conclusion

The regulation of waste produced by employees working from home is unclear and confusing, and the increase in home-working as a result of the Covid-19 pandemic has potentially exposed employers and employees alike to new compliance and legal risks which should be reviewed on a regular basis.

For further information please contact:

First Mile on customers@thefirstmile.co.uk / 0333 300 3448

Angus Evers on angus.evers@shoosmiths.co.uk / 020 7205 7038

By Bruce Bratley and Angus Evers

Easy. Smart.
Green.

You're two steps away from a cheaper, greener recycling service.

Please enter a vaild UK postcode