Following the Prime Minister’s address to the nation on 11 May 2020, the Government published “Our Plan to Rebuild: the UK Government’s COVID-19 recovery strategy” (the “Recovery Strategy”) which sets out the next two phases of the Government’s response to COVID-19 following the Stay at Home guidance (Phase One). The next two phases are Smarter Controls (Phase Two) and Reliable Treatment (Phase Three). This blog examines the effect of the guidance outlined in Phase Two of the Recovery Strategy on the construction sector.

Construction During Phase One (Stay at Home)

During Phase One, construction work in England had been allowed to continue provided it could be undertaken in accordance with social distancing guidelines where possible.  The construction Purchasing Managers’ Index, published by IHS Markit and the Chartered Institute of Procurement and Supply fell to 8.2 in April 2020 from 39.3 in March 2020 which indicated that despite no Government mandated closure of construction sites, site closures were the reality. The previous low was 27.8, recorded during the 2008 financial crisis.

Construction sites that remained open were required to comply with the Construction Leadership Council’s (“CLC”) Site Operating Procedures (“SOP”) which are intended to introduce consistent measures on construction sites in line with the Government’s recommendations on social distancing. Version 4 of the SOP states that where the social distancing guidelines cannot be followed in full in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to continue to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission”.

As well as the requirement to maintain a distance of two metres between individuals where possible, the SOP highlights other important measures as follows:

  • the introduction of staggered start and finish times to reduce congestion;
  • the use of signage, such as floor markings, to ensure a two metre distance is maintained. Stairs should be used instead of lifts or hoists where possible;
  • the introduction of regular breaks specifically for hand washing. Workers should wash their hands every time they get in and out of enclosed machinery with others;
  • the avoidance of using local shops. If there are no practical alternatives, canteens may remain open but only to provide pre-prepared and wrapped food; and
  • the rearrangement of tasks to enable them to be done by one person. Contact between workers should be minimised.

Version 4 has been released in quick succession to the release of version 3.[1] The key differences are as follows:

  • the requirement for face-to-face contact to be 15 minutes or less has been removed;
  • the reconfiguration of seating and tables to reduce face-to-face interactions and the introduction of one-way systems are advised; and
  • there is a requirement to prepare a risk assessment (discussed below).

The Construction Industry Training Board (“CITB”) has worked with the CLC to produce a SOP compliance checklist to give employers a clear understanding of how they can apply the SOP.

Construction during Phase Two (Smarter Controls)

As of 13 May 2020, the Government took the first step in its plan to rebuild the economy following Phase One (Stay at Home).[2]  What does this mean for the construction sector?

In his address, the Prime Minister “actively encouraged” the construction sector, as well as the manufacturing sector, to allow workers to return to work. Despite this slight change in emphasis on the sector, there has been no material change to the Government’s message compared to Phase One: construction work should continue in accordance with Government guidance.

The following parts of the Recovery Strategy are of particular interest to the construction sector:

  1. Risk Assessment

On 11 May 2020, the Government published “Working Safely During COVID-19 in Construction and Other Outdoor Work” (the “Working Safely Guidance”). Version 4 of the SOP largely follows the health and safety measures laid out in the Working Safely Guidance. The guidance states that construction sites need to carry out an appropriate COVID-19 risk assessment, just as they would for other health and safety related hazards. This risk assessment must be done in consultation with unions or workers. The results of the risk assessment should be shared with the workforce. Version 4 of the SOP also includes a requirement to share risk assessments with the workforce. The results should also be published on the employer’s websites and they expect all employers with over 50 workers to do so. The CITB have published an interactive risk assessment template to guide employers, which also offers example control measures for those undertaking the assessments.

  1. Travel

The Government will require all international arrivals not on a short list of exemptions to self-isolate in their accommodation for 14 days on arrival into the UK. This will cause difficulties for construction projects dependent on workers returning from overseas. However, small exemptions will be in place to not hinder work on critical infrastructure. Critical infrastructure has not been defined in the strategy paper but we expect that this will include railway networks and telecommunication networks. All journeys within the Common Travel Area[3] will also be exempt from the measures.

There are also logistical challenges facing construction workers as to how they will travel to sites. The Recovery Strategy, the Working Safely Guidance and the SOP state that sites need to consider other means of transport to avoid public transport. If public transport use is necessary, social distancing guidelines on public transport must be followed rigorously. The SOP also suggests workers consider changing and staggering site hours to reduce congestion on public transport and to avoid using public transport during peak times.

  1. Working From Home

Government guidance remains that businesses and workplaces should make every reasonable effort to enable working from home as a first option. This means that consultants such as engineers, architects and contractors undertaking pre-construction services should continue working from home.

Employer’s Health and Safety Duties

As mentioned in our Construction note Client Health and Safety Duties in Respect of Covid-19, employers should also appreciate that they have a duty under regulation 4 of the Construction (Design and Management) Regulations 2015 (the “CDM Regulations”) to make “suitable arrangements” for managing a project. Arrangements are suitable if “the construction work can be carried out, so far as is reasonably practicable, without risks to the health or safety of any person affected by the project”.

It is recognised that most clients are not experts in the construction process and clients are not required to take an active role in managing the work. The CDM Regulations do, however, place a duty on a client to take reasonable steps to ensure that the contractor complies with its own duties. As the Government is now “actively encouraging” construction workers in England to go back to work, the client should have processes and procedures in place to monitor the activities of contractors (and the principal designer). For COVID-19 related issues, the client should maintain an oversight role. In relation to compliance with Government guidance, such as the SOP, although there is strictly no legal requirement to comply with guidance, compliance with such guidance will be considered when determining whether employers have, as far as reasonably practicable, made suitable health and safety arrangements. Employers that are aware that the SOP is not being followed by the supply chain will need to show that equally effective measures have been put in place. The burden will be on the employer to show that the measures are equally as effective. This is particularly important as the Health and Safety Executive (the “HSE”) have suggested they will be checking that suitable site operating rules and procedures are being implemented and adhered to. The HSE can take a wide range of actions to mitigate public health risks, including providing specific advice to employers and issuing enforcement notices.

“The HSE is the relevant enforcing authority for occupational health and safety legislation and guidance to control public health risks in the construction sector. If a site is not consistently implementing the measures set out by the Government, it may be subject to enforcement action.”[4]

 

 [1] Version 1 and version 2, which was withdrawn following feedback from the sector that it was leading to confusion, took a more stringent approach. They stated that “if an activity cannot be undertaken safely due to a lack of suitably qualified personnel being available or social distancing being implemented, it should not take place”.

[2] Note the devolved administrations are making their own assessments about the lifting of measures in Scotland, Wales and Northern Ireland.

[3] A travel zone between the Republic of Ireland and the UK, the Isle of Man and the Channel Islands.

[4] Version 4 of the SOP.

 

 

Nicholas Downing
Nicholas Downing
Partner and Head of Non-Contentious Construction, London
+44 20 7466 2741
Arash Rajai
Arash Rajai
Senior Associate, London
+44 20 7466 2555
Kate Peck
Kate Peck
Trainee Solicitor, London
+44 20 7466 3791