Refusing to cut down a tree

[agg221]

Glad to hear it went as hoped. Your question was reasonable and it's good that it was taken that way. If the trees are to come down at some point in the future, at least it will be done properly, and I would imagine you have gained some respect in the process.

 

Alec

[tree monkey]

as a freelance climber i would agree with huck its the main contractor that has the resposibility if a tpo etc was in place he should have sorted it before the work commenced imo.

If there was an accident then the climber could be brought to question but its the person getting directly paid by the tree owner that is responsible for the paperwork to be in order

[felixthelogchopper]

I can only repeat what a planning officer informed me, in that " strictly speaking" the liability would be mine. The climber is legally running his own business, providing a service of his climbing ability, to prune/fell the tree. Not knowing what tree he is going to work on, ie ignorance of the law, would be no excuse in the dock.

 

In the eyes of the law, you would have been acting as an employee as you were under direction as to when and how the job was done. Being told by the contractor that the tree was clear to be worked on would be a valid defence as you are reliant upon them to ensure their compliance with the relevant laws. If you asked if the tree was subject to any restrictions and, upon being told that it was or that it had not been checked, you then carried on to work on the tree, you would be in a more perilous position.

[Jimmy91]

Thank you

 

Some people on here were giving me the impression they wanted to convict me just for asking a question!

 

And if anyone feels it was mistake for me to ask this on an open forum, then whatever, the mistake could have been far greater if I hadn't! I now also have two colleagues that witnessed my refusal.

[Gary Prentice]

He's a planning officer, not a lawyer, IMO no judge would see it as "reasonable" to expect staff who have not arranged the job, dealt with the client, etc, to be in a position to check such things.

 

How does a free lance climber even know the owner of the tree whats it worked on? he doesn't.

 

I would get pretty ticked off if my staff started questioning me regarding the legalities of our work, thats my job, my responsibility and my neck on the line.

 

 

To clarify;

The planning officer, on the advice of the councils legal department, informed me that "Strictly speaking" etc, etc

 

There is no relevence in whether or not anyone knows the owner of the tree. The protection is on the tree.

 

To clarify further, your "staff" are your employees. A freelance climber is not an employee in a the legal definition.

 

As I have already said, that particular councils legal department would have, at that period in time, looked to prosecute the main arb company. But put it another way. If a freelancer goes to work for a one man band/jobbing gardener with no knowledge of trees or law. Fells a tree for the gardner to burn or put on his trailer to the tip. Who do you think the councils going to chase?

 

I'm not trying to be awkward with anyone, but obviously in a court of law , all the legal definitions of who did what, works for whom may be applied.

[felixthelogchopper]

To clarify;

The planning officer, on the advice of the councils legal department, informed me that "Strictly speaking" etc, etc

 

There is no relevence in whether or not anyone knows the owner of the tree. The protection is on the tree.

 

To clarify further, your "staff" are your employees. A freelance climber is not an employee in a the legal definition.

 

As I have already said, that particular councils legal department would have, at that period in time, looked to prosecute the main arb company. But put it another way. If a freelancer goes to work for a one man band/jobbing gardener with no knowledge of trees or law. Fells a tree for the gardner to burn or put on his trailer to the tip. Who do you think the councils going to chase?

 

I'm not trying to be awkward with anyone, but obviously in a court of law , all the legal definitions of who did what, works for whom may be applied.

 

Which legal definition is this then?

[Andy Collins]

Jimmy91.

I'd like to commend you on your handling of this situation. Ill be honest, at first I thought here's another employee trying to tell his boss what to do, thinks he knows better and all that. But you have handled this in a proper and professional manner, used the advice and used your head for the best possible outcome.

[Gary Prentice]

Which legal definition is this then?

 

So you pay your freelance climbers sick pay, holiday pay, NI stamp and tax contributions? Do you provide their PPE, climbing equipment, MS201T's. are you responsible for Loler'ing their gear?

 

If you do, I guess they're legally employees?

 

The point I have been, unsuccessfully, trying to make is the difference in liabilities. A freelance climber, is his own entity, having his own legal responsibilities and liabilities. I've said a number of times, from what I've been previously informed, that there is the a liability in the eyes of the law. Whether a council would successfully prosecute is a different matter.

 

I've been employed, freelanced as a climber, climbed for L.A's, run my own business and currently manage a smallish company over the last 30 years, so have picked up a little working knowledge.

 

But, I'm always going, & willing to learn more.

[skyhuck]

So you pay your freelance climbers sick pay, holiday pay, NI stamp and tax contributions? Do you provide their PPE, climbing equipment, MS201T's. are you responsible for Loler'ing their gear?

 

If you do, I guess they're legally employees?

 

The point I have been, unsuccessfully, trying to make is the difference in liabilities. A freelance climber, is his own entity, having his own legal responsibilities and liabilities. I've said a number of times, from what I've been previously informed, that there is the a liability in the eyes of the law. Whether a council would successfully prosecute is a different matter.

 

I've been employed, freelanced as a climber, climbed for L.A's, run my own business and currently manage a smallish company over the last 30 years, so have picked up a little working knowledge.

 

But, I'm always going, & willing to learn more.

 

The definition of an "employee" differs depending on who your asking, the tax man has a very different definition to the H&S man and your insurance Co may have another.

[Gary Prentice]

Yes - you're looking at the either the tort of malfeasance or the situation of a tort feasor under the doctrine of vicarious liability. The program linked below is worth listening to on the subject, very clear and well explained although distinctly worrying if you're an employer.

 

BBC Radio 4 - Unreliable Evidence, Who's to Blame?

 

Alec

 

That went a bit over my head..... Are you in agreement with what I'm saying?:confused1::confused1::confused1: