Refusing to cut down a tree

[felixthelogchopper]

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.

 

My point is that there are many legal definitions of employee, depending on the section of law concerned. The crux of this situation is under whose direction the work is done. As a free-lancer (often confused with a sub-contractor), you are doing the work under the direction of the contractor and so are classed as an employee of theirs, same as you are for the purposes of EL.

[Gary Prentice]

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.

 

No disagreement there.

Freelance climber is a sub contractor, for tax, unless you pay paye. Should be stopping 20%otherwise

Freelance climber is responsible for Loler'ing his own gear for H&S ie subbie

Insurance? Would need to check if our insurance to see if it covers subbies. But if someone came Stumpgrinding I'd expect them to have their own.

[Gary Prentice]

So what's the difference between a subbie and freelance?

[skyhuck]

So what's the difference between a subbie and freelance?

 

Most of what are called "subbies" (subcontractors) are not, they are in fact casuals or "freelance", true subcontractors take on the whole of their job for the main contractor, deciding how the job is done.

[MATTMOSS]

So what's the difference between a subbie and freelance?

 

That should be a new thread

[agg221]

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

 

Yes, particularly on the subject of who they will go after.

 

The programme is actually very good at explaining this (including the legal terms), but the point is that the court can decide to go after the employer for damages, even if they are not guilty of anything.

 

A tort is a civil law. Malfeasance is doing something deliberately wrong (in a civil sense), so malfeasance is deliberately committing a civil wrong, like cutting down a tree with a TPO on it. The tort malfeasor is the person/body who deliberately commits the wrong.

 

If a company owner instructs an employee to do it, the 'company' will have committed the malfeasance and can be sued for breaking the law.

 

If an employee decides to do it, even if they know they shouldn't, without their employer telling them to do so, they are the tort malfeasor and have committed the civil offence. However, they (the employee) probably don't have a lot of money, so for someone choosing who to pursue for damages, they're better off going after the employer, whilst fully acknowledging that the company is not guilty of breaking the law.

 

This situation surprised me, but examples cited on the programme include a (successful) damages claim against a night club where the bouncer got hacked off with someone, went home, came back and attacked them. Note, the night club was explicitly not guilty of breaking any law, but was pursued for 'vicarious liability' and lost.

 

As to whether someone is technically an employee, I suspect would be argued based on whether that secured more chance of extracting damages.

 

Don't forget, damages don't have to just be the cost of something, they can be punitive or exemplary, i.e. designed to send a message to others not to do the same thing.

 

Hope that clarifies a bit!

 

Alec

[MATTMOSS]

Most of what are called "subbies" (subcontractors) are not, they are in fact casuals or "freelance", true subcontractors take on the whole of their job for the main contractor, deciding how the job is done.

 

Now you're just making it up

[treequip]

Now you're just making it up

 

You are joking arent you?

 

 

That’s a pretty concise and accurate post

[Gary Prentice]

Thanks Alex, that's a very clear and concise explanation.

 

Skyhuck, the definitions I searched shows no real difference between FL and subbie.

 

Pulling up a chair now to watch Andy and Matt discuss......

[Jon Heuch]

A tort is a civil law. Malfeasance is doing something deliberately wrong (in a civil sense), so malfeasance is deliberately committing a civil wrong, like cutting down a tree with a TPO on it. The tort malfeasor is the person/body who deliberately commits the wrong.

 

If an employee decides to do it, even if they know they shouldn't, without their employer telling them to do so, they are the tort malfeasor and have committed the civil offence. However, they (the employee) probably don't have a lot of money, so for someone choosing who to pursue for damages, they're better off going after the employer, whilst fully acknowledging that the company is not guilty of breaking the law.

 

Hope that clarifies a bit! Alec

 

I suggest you don't give any more legal advice - cutting down a protected tree will lead to a criminal offence; tort involves injuries between two members of the public - a civil matter.