Last month, David Franklin blogged about the impact of coronavirus and infectious diseases on construction projects, such as force majeure and extensions of time.
Since then the World Health Organisation has declared COVID-19 as a pandemic, the UK has shut theatres, pubs, restaurants and schools, introduced social distancing and passed the Coronavirus Act 2020, all to suppress the spread of COVID-19.
Thousands of workers are now working from home. Several construction sites have temporarily closed. It is clear that we are in unchartered territory and that things are changing very quickly. However, here are some things that we do know.
Construction sites in England
So far, the Government has not ordered the closure of construction sites in England despite pressure from a cross-party group of MPs to do so at least for non-essential construction work. Indeed, the Secretary of State for Business acknowledged the important contribution that the industry makes in his letter of 31 March 2020 confirming that construction work can continue and sites can remain open if they comply with the Site Operating Procedures (SOP) published by the Construction Leadership Council (CLC).
Social distancing guidance
The guidance on social distancing in the workplace, updated on 7 April 2020, confirms that in England construction can continue if done in accordance with this guidance wherever possible. Where it is not possible to follow the social distancing guidance in full in relation to a particular activity, the government advice is to "consider whether that activity needs to continue for the site to continue to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission."
Site Operating Procedures
The SOP outline measures to be implemented on sites to comply with the Government's recommendations on social distancing and to protect workers. Version 1 was published on 24 March 2020. Version 2 was published but quickly withdrawn earlier this month.
Version 3 was published on 14 April 2020 and is aligned with with the social distancing guidelines of 7 April. The CLC has also endorsed a new video setting out the latest on the new ways of working.
These updated procedures confirm that the HSE is the enforcement body for breaches of the social distancing guidance and emphasise that the health and safety requirements of any construction activity should not be compromised. They are intended to introduce consistent measures on construction sites to protect the workforce and minimise the risk of infection.
The updated procedures include details about travel to work and varying shift patterns. They also contain advice as to what to do if social distancing measures cannot be applied in a hierarchy of controls to reduce risk, such as recommending that workers work side by side or facing away from one another and limiting the use of lifts and hoists. Where groups of workers have to work within 2 metres of each other those teams should be as small as possible, workers should not change teams, and should be isolated from other workers. Finally, any face to face meetings should be limited to 15 minutes "where possible".
Construction sites in Scotland
In contrast, the Scottish Government has made it clear that work on construction projects should cease unless supporting the COVID-19 response, essential public services or repair and maintenance of critical infrastructure.
Payment
Although it is impossible to say when things will start to return to normal, the CLC in its Statement on Payment and Contracts on 8 April 2020 urged all clients and firms to consider the wider responsibility to sustain the construction industry and do the right thing so that the industry is in good health once the pandemic has passed. Cashflow and liquidity is vital to the industry and so the CLC is encouraging contractual payments to be made on time in accordance with contract conditions, and for clients not threaten to invoke penalty clauses during the public health emergency.
Other obligations
While Government intervention has not yet closed sites in England and the parties will need to decide what needs to be done in each particular circumstance, other obligations such as the duty of care that all employers owe to their employees to provide a safe place and system of work under the Health and Safety at Work, etc Act 1974 should not be forgotten.
If you would like advice on any specific matter, please contact your usual Taylor Wessing contact in the first instance.
