UKTC Archive

Re: Time to think - INSURANCE

Subject: Re: Time to think - INSURANCE
From: Jim Quaife
Date: Dec 30 2003 12:02:07
Dear David,
Thanks for that - it does shed much more light on the problem and indeed the
instances you describe are precisely the grey areas that I refer to.
You are, I believe, quite right in suggesting that each individual should
examine their own position and with professional advice decide how they are
to proceed.
There is of course no mandatory requirement  where "employment" is not
deemed to exist.  My suggestion is that one should ensure that you are not
exposing yourself to risk and consequently the starting point is that you
have that responsibility.  If you can demonstrate that you have not (without
the mechanism being "contrived"), then fine.
Personally I am in no position to advise anybody and I think your point
about partnership arrangements is very useful. I am merely putting my point
of view forward, which is in no small degree formed from the observation of
the energy put into loss adjustment by insurers!
In any area of insurance, you can only judge the real worth when a claim is
made.  Provided that you can show that you have acted reasonably, then you
should have nothing to fear.
Jim Q
----- Original Message -----
From: "David Cheshire" <davidjcheshire@xxxxxx.ca>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Sent: Saturday, December 27, 2003 6:05 PM
Subject: Re: Time to think - INSURANCE


Dear Jim,

In a previous parallel universe I used to be a taxation specialist, and
the question of employment/self-employment was a perennial conundrum in
certain quarters.

There is a fair body of case law on the subject, from which it is clear
that there is most unlikely ever to be a single feature that makes a working
relationship between two people either self-employed:self-employed, or
employer:employee.  A person who contributes to the profitability of your
work, or assists you in deriving income from your business, is one of those
single features.

The current belief is that a subcontractor engaged by contractor
automatically becomes an employee.  Anyone who wants to challenge that would
certainly be able to convince the judge that is too inclusive to say that
"Anything or anybody that assists you to that effect (how one derives
income) is a "tool" of your work" - for example it makes the consultant an
employee of the arborist who asks him for a professional opinion, or the
motor mechanic an employee of the arborist whose vehicles he services.  Both
the consultant and the motor mechanic help the arborist to organise his
business, and to derive income from it.

So why should the fellow arborist, working beside another at his request,
with perhaps as much experience and ability, or more or less, automatically
become an employee just because he is an arborist?  The working relationship
used to be examined on the basis of master and servant, but nowadays the
whole working arrangement is usually looked at - but there are still grey
areas, and arguments can be made for self-employed or employee status for
many aspects of the working arrangement.

My humble opinion is, therefore, that there is no mandatory requirement
for Employer's Liability insurance in respect of any subcontracted arborist,
because the subcontractor does not indisputably become an employee - unless
the contractor wants him to be, and the subcontractor agrees to it.

If I were still in the tax game, I would be advising arborists to consider
partnership arrangements with their regular, even though intermittent,
subcontractors.  There would have to be a written agreement about the
insurance liabilities.  As ever, because it is a question of money, much
would depend upon the financial burdens that might be avoided.

Regards.

David Cheshire.

Jim Quaife <jq@xxxxxx.freeserve.co.uk> wrote:
Dear David,
There is no published statement to that effect. However, I have taken some
time over the last few years to attempt to clarify the matter with the IR
and various employers (not mine!), both large and small. I have also asked
the legal section of my local authority to pronounce forth.
The actual crux is one of reasonableness. There are successful mavericks
who are able to wind the legal system around their litle fingers, but the
majority of mere mortals are obliged to play the game within the system.
On
that basis one has to look at the nature of how one derives income.
Anything or anybody that assists you to that effect is a "tool" of your
work.
To draw an analogy with the legal criminal system is improper, but if one
attempts to do a body swerve around responsibility and you fall foul of
the
11th commandment ('Thou shall not get caught'), you are not just shown to
have avoided that responsibility, but also to have deliberately attempted
to
avoid it. The improper comparison is with the severlty of a penalty
between
pleading guilty and being found guilty having protested innocence.
The bottom line is one that I would turn around from your quite reasonable
question - I would need to see a categorical statement that someone was
NOT
an employee before taking the risk.
Who would gain from one being found to have an insurance responsibility
and
having no insurance?
Perhaps this disaster with insurance premiums will have a greater number
of
benenfits in the long term than is immediately obvious? Will it "smarten
up
the act" by forcing clarification? One thing is for certain and that is
that it demonstrates that employment insurance is not an isolated issue,
but
inextricably linked with all that we do in an effort to earn a living.
It is a cloudy issue. Surely the primary factor is whether or not you feel
comfortable and protected?
Jim Q
----- Original Message -----
From: "David Cheshire"
To: "UK Tree Care"
Sent: Tuesday, December 23, 2003 10:38 PM
Subject: Re: Time to think - INSURANCE


Dear Jim,

re "The use of a sub-contractor as part of your commercial or
gainful activity is employment" - this is the crux of the matter.
Please identify the authority for it.

Regards.

David Cheshire

Jim Quaife wrote:
The use of a sub-contractor as part of your commercial or gainful
activity
is employment. It does not matter whether you are personnaly skilled at
the
particular operation, they are contributing to the profitability of your
work.


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The UKTC is supported by The Arbor Centre
http://www.arborcentre.co.uk/