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jonno141

subcontracting to the same company

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In the other examples given above, the company carrying out the work is responsible, not the climber. If the climber decides to bosh out the top without rigging it as instructed, then the company doing the work is responsible. Should have hired in a more reliable climber but the choice to use one climber over another is effectively the chosen method for that job, so if its high a high risk job and you choose to hire in someone that might not listen to instruction and doesnt have the skills to know what risk is acceptable then thats a business decison that went wrong and precisely what PL is for.

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Another way of looking at it..........

 

If a self employed person has his/her own PL insurance then that insurance is for working as a sub contractor. (insurance companies call it Bona Fide Sub Contracting (BFSC)) That is the only type of insurance there is. There is no insurance for self employed people to work with other companies as part of that companies team, it doesnt exist.

 

Now, we all know what a BFSC is. Its another tree company given a job for a fixed price which they then get on with on their own with their own vehicles/kit groundsman etc.

 

 

So, when something goes wrong in the scenarios given above where a climber is working with a tree company, the climber is not working as a BFSC so his insurance is not valid.

 

A climber on their own cannot be a BFSC, therefore their insurance, which they shouldnt have, is not valid.

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Another way of looking at it..........

 

If a self employed person has his/her own PL insurance then that insurance is for working as a sub contractor. (insurance companies call it Bona Fide Sub Contracting (BFSC)) That is the only type of insurance there is. There is no insurance for self employed people to work with other companies as part of that companies team, it doesnt exist. it does exist, the problem is that the majority of hired in "self employed" labour isnt self employed. If the terms of the engagement were truely self employed then they are BFSC

 

Now, we all know what a BFSC is. Its another tree company given a job for a fixed price which they then get on with on their own with their own vehicles/kit groundsman etc.not necessarily so. Jobs dont have to be fixed price to be BFSC. If Fairford tree services does a job on a reimbursible day rate do they suddenly become employees of the client? Jobs can be fixed price or reimbursible and it doesnt affect employed/self employed status

 

 

So, when something goes wrong in the scenarios given above where a climber is working with a tree company, the climber is not working as a BFSC so his insurance is not valid. if the climber is working on self employed terms then his insurance is valid and should be claimed against if he drops a clanger

 

A climber on their own cannot be a BFSC, therefore their insurance, which they shouldnt have, is not valid.

 

If you have a read of Leaflet HSE40 it explains when EL insurance is and isnt required. If EL isnt required then the worker isnt an employee and is a BFSC and should carry their own PL insurance. Within the leaflet the HSE cover some of the tests for self employment the principle ones being lack of control and substitution. The problem is that the majority of "self employed" engagements dont include these rights so most of these engagements are very likely to be employment, necessitating the need for EL on the part of the employer. In this case the worker is actually employed rather self employed and the employer carries responsibility for the employed workers actions so would be very wise to carry PL insurance.

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So wrong I dont know where to start!

 

You cannot sub contract part of a team! What if the climber drops a clanger because the groundie let go of the rope? If the groundie is self employed then is it his insurance? The person doing the job, i.e. the company "aardvark" is responsible for whatever happens on that job. If the self employed climber is rubbish then Aardvark is responsible for choosing a rubbish climber, if the climber ignored instruction then Aardvark is responsible for using a climber that ignores instruction. If the climber is under the influence then Aardvark is responsible, etc etc.

 

You can wrongly hire a self employed person and in fact he is employed and the HMRC will take dim view of it. In that instance you need PL to cover his action. And this goes on all the time, the OP is talking about full time as subcontractor which is clearly wrong in the eyes of HMRC.

 

You can also legitimately hire a self employed person and he becomes an employee for the day. He does not become a sub contractor and still does not need insurance.

 

If you hire someone, legitimatly self employed but working with you, then you need insurance. What else is your insurance for? You dont need it for yourself? If they drop a clanger than its your fault for hiring them and your insurance. You cant pass the buck.

 

Unless you use BFSC, i.e. another company. Dont get too hung up on the fixed price bit, thats not a definition, you could use BFSC on a day rate if you wanted but that would be bad business, the whole point of sub contracting work would be to make a profit, and as you wont have anything to do with how the work is done then its better business sense to have it on fixed price, but I didn't mean that as a definition as its not. I agree with you that jobs can be fixed price or reimbursable and that on its own doesn't effect/define employment status. I don't actually quite know what you mean by reimbursable but I think I get your drift.

 

Only when Using BFSC and having no control of when the job is done or how its done can you then use the BFSC insurance. (only if your insurance includes the use of BFSC) And its in this instance that the BFSC could use a substition as its none of your business who does the work.

 

 

Instead of reading leaflets try and look at how this industry actually works. No self employed person sends a substitute, how could they? They would have to employ that substitute.

 

Only a BFSC can choose who does the work and how. And self employed person is not a BFSC, but can still be genuinly self employed, and still doesnt need insurance. If you use self employed people to work with you then your are responsible for their actions.

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In my case, I currently have two workers. Both self employed.

 

One is a climber, a very good climber. He's a freelance climber, like Rich Rule or Adam Bourne. He works for about five other companies and is always booked up. I have to book him up weeks in advance and if he's already booked up then its my tough luck. He mostly does groundwork for me or climbs as a second climber if we have another groundie in. He does not have any insurance and I would not let him waste money on insurance as he doesnt need it because he doesnt do his own jobs. I trust him with my life, and with all my kit, and I trust him to not damage or kill anyone. I trust him so much that he does not need insurance, my insurance covers my trust in him. If he drops a clanger then it will go on my insurance. Of course I have EL. If he got seriously injured while working for me I'll help him fill in the claim forms.

 

I also hire a groundie on self employed basis. Now this groundie actually has his own tree business. Sign written vans, website the lot. And of course his own insurance. He's trying to get his own business off the ground but has very little experience. Hes got climbing tickets etc but he doesnt climb for me. I've seen him up a tree once and it was painful to watch! So when he has his own jobs he gets by or hires a climber, thats his business, nothing to do with me.

 

I get him in now and then, but only when hes free, so I know hes definatly self employed, they both are. Even though the groundie has his own business, has his own insurance and to be fair he could send his grandmother as a substitute and there'd be little drop in performance, none of that makes him a bona fide subcontractor. If he drops a clanger or lets go of a lowering rope (he has rigging tickets too) then thats my fault. I trust him to do his best but most of all I trust my self to not give him anything beyond his cababilities, and therefore MY insurance back this up. Not his, and never will.

 

And if he seriously injured himself on my job I'd help him fill in the claim forms.

 

Oh, neither of them would accept a full time or part time (paye) job if I offered it to them, this also helps re enforce their self employment.

 

They have their own PPE, but as an employer I understand that its my responsibility to ensure they are using it. For the climber, its my responsibility to check his loler stuff etc.

 

 

Am I doing anything wrong? I dont think so. I am using genuinely self employed people but they work WITH me. Occasionally I send them both out to work together without me but that is still my responsibility. At no time are either of them BFSC.

 

I am quite sure that any of the genuine freelance climbers or groundies that frequent this forum would be happy to work with me under the conditions described above.

Edited by Rupe

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