Updated on 16 April 2020:
The UK Government’s restrictions on freedoms of movement for people, goods and services to prevent the spread of the COVID-19 epidemic continue.
While the usual restrictions apply to construction workers as to everyone else, there is no specific restriction on the construction sector.
In fact, on 31 March 2020, Secretary of State for Business, Energy & Industrial Strategy, Alok Sharma sent an open letter to the UK construction industry, thanking them for delivering on construction sites across the country.
However, there have been mixed messages from the UK Government, politicians and industry as to how contractors should continue to operate or whether they should at all, although the Scottish Government and Welsh Assembly have provided further clarification.
This confusion is exacerbated by the messaging that work should continue with the requirement to protect the workforce.
Construction Leadership Council (CLC) guidelines
On 23 March 2020, the CLC produced Site Operating Procedures (PDF) (SOP) to which Alok Sharma referred in his letter. A second version was produced on 2 April but was quickly withdrawn as the guidance was deemed impractical. The SOP have now been updated, as of 14 April, and set out how construction sites can operate while still complying with government recommendations on social distancing.
The SOP include general advice that would apply to any business at this time and principles specifically for construction sites, including:
Minimising the opportunities for workers to be in close proximity or contact by, for example by only permitting essential tasks which require workers to be in proximity and face to face to continue for 15 minutes at a time.
Minimising the numbers of workers on site by, for example postponing all non-essential parts of projects, even if these can be achieved while maintaining social distancing.
Minimising workers’ exposure to the virus by, for example by removing systems which require manual operation (e.g. fingerprint security).
CLC has followed Public Health England advice and the bottom line is that “where it is not possible to follow the social distancing guidelines in full in relation to a particular activity, you should 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”.
The two-metre working distance is now law in Wales and not just a guideline. In follow-up guidance, the Welsh Assembly has explained that employers are required to take all ‘reasonable measures’ enabling workers to maintain adequate space on site. How employers enforce reasonable measures is at their discretion – and where it is impossible to keep workers apart, due, for example, to health and safety requirements, employers will not be penalised – but they must conduct assessments in order to justify their choices.
The Scottish Government has been more explicit. As of 6 April, all non-essential construction projects – those which are not facilitating the reaction to Coronavirus, or maintaining vital services or critical national infrastructure (CNI) – should stop immediately. Only construction workers engaged on COVID-19-related services, other vital services or CNI projects are classed as key workers (guidance for whether projects come under these categories can be found here). While it is for construction companies to decide which (if any) of their projects come under CNI, they must in any event only keep open the parts of their business which are necessary for dealing with such projects.
The position in the UK
With attention turning now to restarting economic activity, although there remain some mixed messages, it looks less likely that the UK Government will follow suit and introduce stricter legal requirements to enforce distancing onsite. The UK Government has not indicated so far that it intends to impose stricter legal requirements on the construction industry, following Scottish or Welsh decisions. Its approach has been broadly more permissive than that of the Scottish and Welsh authorities and looks unlikely to become more stringent as the initial wave of Covid cases passes first peak.
The industry in the UK is left in the confusing position where the UK Government is encouraging it to continue to operate (albeit within the boundaries of its social distancing guidelines), the London Mayor has encouraged the Government to ban non-safety construction work and the latest guidance from the CLC in practice requires employers to decide how to reconfigure works to comply as best they can with social distancing requirements.
For instance, safe social distancing on site is often unpracticable: some tasks require workers to operate in close proximity for health and safety reasons; and certain personal protective equipment may not be safe to use (for instance for hot work, such as welding, as it would not comply with industry codes of practice).
A further issue is whether certain construction workers are key workers. While those involved in maintaining certain utilities work (such as power plants and transmission cables) are key workers (see this UK Government guidance), it is not clear whether maintenance of construction sites outside the utility industry would fall into this definition.
How the construction industry has reacted
The result of this confusion has meant that some large construction and infrastructure projects have felt it necessary to shut-down.
A survey by Barbour ABI has found that most larger housebuilders (such as Persimmon, Barratt and Bellway) have announced a suspension of all activities, the Crossrail project has been stopped and Transport for London has suspended all construction activity. The construction industry has been hit hard by Covid. March’s PMI data reflected the suspension of large numbers of projects, with the IHS Markit/CIPS UK Construction Total Activity Index dropping to 39.3 in March from 52.6 in February, its steepest fall since April 2009.
In contrast, the transport and utilities industries have sought to continue to work where possible:
- HS2 construction work can begin immediately after several weeks’ hiatus;
- Highways England has decided to continue much of its planned activities;
- Network Rail has announced that, as passenger services have markedly fallen, freight services have increased to meet the demand for critical goods and supplies;
- Heathrow similarly expects to see a rise in freight usage; and
- Thames Water has reduced its administrative staff but is ensuring that water services are continuing to run.
For those construction companies who have suspended activities on their sites, the CLC has provided guidance (PDF) to ensure a controlled and safe shutdown. This includes creating a closedown plan, ensuring that the site remains safe (for instance securing any scaffolding and temporary works) and secure (for instance ensuring that the site is closely monitored whether in person or remotely).
There will also be a number of legal and contractual considerations for construction companies to consider if they suspend work on site without such measures being enforced by the Government. For relevant discussions see our blogs on:
- force majeure and managing risk in global projects;
- dealing with impacts of COVID-10 for NEC contracts; and
- procurement advice for those contracting with the UK Government.
We will continue to monitor developments and provide an update on the position as it changes