Mark Giles clarifies whether construction sites can stay open, based on current government advice.
At the time of writing (Tuesday 31 March), government advice in England remains that construction sites can remain open.
This is subject to the proviso that workers on site should maintain a distance of two metres apart. Critics have argued that this could be impossible to enforce. The nature of building sites meaning that strict hygiene regimes will not be possible.
In Scotland the situation is slightly different, with First Minister Nicola Sturgeon advising that, apart from hospital work, all building sites should close. But with this advice in clear conflict with that of Westminster, not all Scottish sites have closed.
Who has shut sites?
Contractors have been seemingly slow to act. However, without instructions from the employer, closing sites could leave a contractor open to cost liabilities. We have seen some major tier-one contractors close sites. It is possible they have taken the view that morally, and to adhere to health and safety legislation, putting staff and the wider public at risk is not the right course of action. Multiplex were one of the first to close sites, followed by Lendlease, Redrow and Bouygues with others subsequently joining them.
However, could these firms encounter legal difficulties? As one well-known construction solicitor pointed out last week, ‘in law, moral obligations are not enforceable’.
Do we have to shut sites?
As of right now, the simple answer is no. The messages from the government are mostly advisory. No statutory power has been used in England to shut down construction sites. Until clarity is given you are under no legal obligation to close the site.
In fact, the official advice is that you “Only go outside for food, health reasons or work (but only if you cannot work from home)”. Few site workers will be able to work from home, so they will necessarily have to go to work.
Health and safety legislation
However, while the government is not ordering the closure of sites, that may not mean you can continue as usual. It is important to remember that the Health and Safety at Work Act still applies. Section 2 (1) of the Act states:
“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”.
Many sites are not taking the advised precautions. This could be opening construction companies up to negligence claims under the Act. The Management of Health and Safety at Work Regulations also advises that risk assessments should be carried out should there be significant changes to conditions. It would be extremely unlikely that anyone would argue that the coronavirus is not a significant change to conditions.
There is the possibility that negligence claims and even prosecution might arise, should a client insist operatives stay on site, making no allowances for adhering to the two-metre rule and related guidance. It is also important to note that this regulation applies to contractors and sub-contractors alike.
What should we be doing?
Until government advice becomes clearer this is a difficult question to answer. Should you receive instructions to close the site, clarify these in writing and ensure you issue any notices required under the contract. If you do leave site, you must also ensure it is safe and secure before doing so. Take care to comply with all the usual legislation with regard to CDM, Health and Safety and of course your contract terms and the Construction Act.
If the site is to remain open, clarify with the principal contractor that a risk assessment has been carried out for covid-19 and ask them what measures they will be putting in place for social distancing.
Mark Giles is managing director of MGLS.
