As at the time of writing, the construction industry is still coming to terms with the full implications of Prime Minister Boris Johnson's announcement of 23 March 2020, setting out unprecedented restrictions on movement and public gatherings and orders relating to the closures of businesses as set out under the Health Protection (Coronavirus, Business Closures) Regulations 2020 (the Regulations).
Wide-ranging though these measures are, however, there is no mandatory requirement to close businesses other than those expressly referred to in the Regulations and conspicuous by their absence are any references to construction sites, workshops or factories (with the particular exception of any on-site canteens, which fall into the category of cafes).
The "social distancing" measures introduced by the Government also contain exceptions which imply that they are not mandatory for construction sites; there are exceptions for travelling to and from work where this absolutely cannot be done from home (eg. for construction roles) and, whilst it is important to carry out any activity where possible maintaining a 2-metre distance between two people, there is an exception where this is essential for work purposes.
The Government is also stopping all public gatherings of more than two people but again there is an exception where the gathering is essential for work purposes (eg. for health and safety reasons on a construction site). Nonetheless, workers should be trying to minimise all meetings and other gatherings in the workplace.
Statements made by Robert Jenrick, Housing Minister, and Cabinet Minister Michael Gove following the Prime Minister's 23 March address stated explicitly that they expect work on construction sites to be able continue within the current restrictions. This sentiment was reflected in Matt Hancock's press conference on Tuesday afternoon.
Further information issued by the Construction Leadership Council (CLC) clarified that the Cabinet Office had confirmed that construction should continue as long as it can be done safely AND in accordance with the Public Health England guidance.
The latest CLC Site Operating Procedures (SOP) (available here) which are aligned with the latest Public Health England guidance must be followed until guidance changes, in which case the SOP will be updated.
In the meantime, CLC guidance is that all companies in the construction sector should consider the following:-
- operations on sites and factories that can comply with CLC SOP guidance of social distancing for their workforce traveling to and from site, use of welfare facilities and carrying out the works;
- the priority of safety critical, and then other activities that can be executed safely and in accordance with CLC SOP;
- if people cannot get to site whilst complying with PHE guidance, then they should not do this;
- if there are not the correct number and type of people on site to safely undertake works, then as is always the case, works should not continue;
- even if there are sufficient number and type of people to undertake works safely, but this cannot be done in compliance with PHE guidance, then again the works should not be done;
- companies are obliged (under Government guidance) to stop the use of any crowded canteens;
- crucially, if the CLC SOP are not "consistently implemented" across sites, then they may be required to shut down.
For many in the industry, this position seems at odds with the general measures put in place across the country aimed at reducing to a minimum all but "essential" work, which one might immediately think of as that involving the delivery of essential supplies such as food, medical care and related equipment. This point has been made emphatically by the Mayor of London, several Labour politicians and the First Minister of Scotland, however currently the position seems to be that there is no legal obligation on parties to suspend works, subject to being able to comply with the above guidelines.
As stated in our last update parties need to review their terms carefully and seek legal advice before seeking to exercise any contractual right, especially suspension or termination, as cases may turn on particular drafting and circumstances. Getting it wrong could at best risk damages (for delay or loss and expense) but at worst it risks repudiating the contract leaving it open to the other party to claim damages and elect to terminate.
The contractual position is one aspect to be considered. However, there are wider aspects to consider such as the health and safety of your project teams, the businesses' obligation as a responsible employer and member of the wider community and possible public criticism. All of this puts those parties currently on site in a difficult position.
It has been reported that, as of yesterday (24 March), several major contractors have announced the closure of sites, including Multiplex, ISG and Taylor Wimpey and many others are expected to follow suit, if not doing so already. However at the time of writing it is unclear whether contractors have closed sites unilaterally or on the instruction of the site owners.
It does feel inevitable that mandates around site closures will follow in the face of mounting public pressure, with prominent images in the press of construction workers travelling to work on crowded tube trains and gathering together on site, but in the meantime clients are faced with the same kinds of decisions that pubs and other leisure businesses were just a few days ago – whether to act now as a result of Government guidance or to wait until they are ordered to close?
We are advising our clients that coming to a pragmatic agreement based on prioritising the health of the workforce and the wider public is the only sensible way forward. Any one party seeking to exploit the situation to their advantage will not be looked upon favourably by any future tribunal.
