The Construction Industry and COVID 19 – Uncertain Times

The Covid 19 crisis has meant that all sectors of the economy have had to rapidly adapt to evolving guidance. This is especially the case for the construction industry which, unlike the leisure sector, still has the option to leave sites open. Contractors therefore face the challenge of balancing their contractual requirements to deliver services whilst following new guidance and ensuring the safety and welfare of both workers and the wider public.

How rapidly the picture is evolving is demonstrated by the fact that the government publication, Guidance on Remediation and COVID-19: Building Safety Update, originally published on 27 March 2020, was updated a mere four days later on 31 March 2020 to link to the Construction Leadership Council advice on Site Operating Procedures (“SOP”) and protecting the workforce.

The original Guidance was stated to be “for those with an interest in building safety” and refers to “making buildings safe including the remediation of high-rise buildings with unsafe cladding, particularly those with unsafe Aluminium Composite Material (ACM)”. In essence, the government had recognised that this work is vital; it would be a cause for concern if another Grenfell occurred because vital fire remediation was put on hold.

In parallel to the Guidance, the Secretary of State for Business, Energy & Industrial Strategy Alok Sharma MP published a letter to those working in the construction sector confirming that the SOP aligns with the latest guidance from Public Health England. This confirms that the need for construction to stay open for business goes beyond fire remediation: the letter refers to “building temporary hospital wards, installing complex and life-saving oxygen systems, constructing the infrastructure that society needs to function or ensuring that people have safe and healthy homes to live in, you are delivering for our Nation through this difficult time.”

It is noted in this regard that many construction workers have key worker status, including those who “keep the air, water, road and rail passenger and freight transport modes operating” and those who work in the “oil, gas, electricity and water sectors (including sewerage)” as confirmed in the previously published government guidance on maintaining educational provision.

As the government clarifies in the guidance, construction sites have not been asked to close, so work can continue if it is done safely. It also confirms that people working in construction can continue to travel to work, which is consistent with the Chief Medical Officer’s advice. This is contrasted with the express prohibitions on specified shops and business such as cafes and restaurants remaining open contained in the Coronavirus Act 2020 (the Act) which became law on 26 March 2020. The Act confirms that where it is not possible for a worker to provide their services from home then they can attend their work place (Regulation 6(2)(f)).

However, whilst construction sites can remain open, the Guidance was updated on 31 March 2020 to warn contractors that sites which cannot demonstrate that they are consistently implementing the measures set out in the CLC guidance face the risk of being shut down. The new recommendations follow on from images shared on social media which appeared to show construction workers failing to follow the recommendation to socially distance by staying 2 metres apart.

The CLC guidance includes the following:

• criteria for workers who should be asked to self-isolate;
• procedures to follow if a worker falls ill on site;
• recommendations that, where possible, workers should travel alone and using their own transport, and matters that sites should consider such as providing cleaning facilities at entrances and exits;
• What should be put in place regarding site access;
• Guidance for communal areas such as canteens and cleaning facilities. These include introducing staggered start and finish times, and increasing areas where possible to allow for two meters distancing;
• Principles for where workers cannot distance themselves by two meters, either because it is not possible, or safe for workers, such as stopping non-essential physical work which requires close contact;
• Cleaning requirements on site.  

For many contractors, there will be a difficult balance in meeting these demands. Without a formal declaration by the government that sites must close, construction companies who wish to close sites have to instead carefully scrutinise the contractual provisions to see whether they are entitled to relief, or face delays and potential liquidated damages.

Many large housebuilders such as Persimmon and Barratt have put a pause on works, no doubt aware that buyers will not be able to complete due to restrictions on movement. For those who are working on infrastructure, making dwelling safe and supporting the NHS in fighting the pandemic, then it is clear the government considers those works to be essential. For the rest of the industry, the position is considerably murkier.