Contractors who keep sites open face high costs to meet health and safety rules
“There have been as many plagues as wars in history, yet always plagues and wars take people equally by surprise” – these words from Albert Camus’ The Plague sum up how the covid-19 pandemic has taken the world by storm. The UK’s construction industry is facing the greatest challenge since Brexit, but there is little specific guidance from Westminster on the way forward. Whereas all non-essential sites in Scotland have been ordered to close, sites across the rest of the country have been left in the unenviable position of having to decide whether they should remain open.
Over the past month, construction lawyers like myself have been called upon to advise on the health and safety implications of keeping sites open, taking into account the CLC’s Site Operating Procedures (SOP), now in their third revision. Although each project is different, there are at least three recurrent and intertwined issues to be navigated:
- Statutory obligations under the Construction (Design and Management) Regulations 2015 (CDM Regulations)
- Employment law obligations
- Contractual obligations and entitlements.
Health and safety should always come first, and the following CDM Regulations is particularly relevant when implementing the SOP:
- Regulations 4(1)–(3): The client (typically the employer) has to make, review and maintain suitable arrangements to ensure that works can be carried out safely as far as reasonably practicable. There is an emphasis on allocating sufficient time and resources, and employers may have to consider allowing additional time and/or reimbursement for contractors to implement the SOP, while keeping a close eye on the steps taken.
- Regulation 12(2)–(4): The principal contractor has to review, update and revise the construction phase plan from time to time. This is a convenient starting point for discussing and communicating the necessary measures under the SOP, and all duty-holders should work together to incorporate revised site rules and guidance.
- Regulation 13(1)–(4): The principal contractor must plan, manage and monitor the construction phase to ensure that works are carried out safely as far as reasonably practicable. This is likely to involve additional site induction/training and adjustments to Schedule 2 welfare facilities in line with the SOP, bearing in mind the specific requirement to monitor and co-ordinate implementation on site.
- Regulations 14(a)–(b) and 15(8)–(9): The ongoing exchange and communication of information is an important requirement, and all subcontractors and workers should have a reasonable opportunity to communicate their concerns and suggestions.
- Regulations 17(2)–(4) and 33(1): The SOP directly addresses the requirement of safe places of work, safe access points and sufficient fresh air, but controversial issues may well arise as to the adequacy of working distances, PPE and ventilation.
It bears emphasis that the CDM Regulations only contemplate measures that are “reasonably practicable”, and the principal contractor is expected to apply the general principles of prevention by identifying the risks and putting in place proportionate measures to control those risks at source. The language is deliberately open-textured to allow an element of discretion, and with respect to covid-19, the SOP is likely to act as a non-binding benchmark.
Would it be reasonable to provide face masks for close working only as a “last resort” as per the SOP? Should the works be stopped if masks are advisable but costly or unavailable?
The most acute problems are likely to arise from projects with a significant amount of close working, notwithstanding the latest SOP’s “hierarchy of controls”. Given the emphasis in the SOP that an activity that cannot be undertaken safely should not take place, what counts as an “essential” activity, and when is it reasonable to take a risk?
This is where the wider employment law issues complicate matters. Each party owes a common law duty to exercise reasonable care to protect its employees from foreseeable risks and provide a safe place/system of work. There are also extensive obligations under the Health and Safety at Work etc Act 1974 and Management of Health and Safety at Work Regulations 1999. In this context, the CDM Regulations and the SOP provide no more than guidance as to what might be regarded as reasonable care.
By way of illustration, given the growing body of medical research indicating the risk of transmission through viral droplets/aerosol from breathing and talking by asymptomatic patients, and the increasing number of experts recommending the use of face masks for this reason, would it be reasonable to provide face masks for close working only as a “last resort” as per the SOP? Should the works be stopped if masks are advisable but costly or unavailable? There is no easy answer, for it is as much a legal problem as it is an ethical dilemma.
It is impossible to rule out claims from workers who contract the coronavirus on site, and indeed, many workers are already feeling at risk and without a voice. Given the additional costs of implementing the SOP and the various inevitable risks on site, it is unsurprising that many construction firms have decided to adopt a precautionary approach and close their sites.
The reality is that the industry is between a rock and a hard place – torn between its health and safety obligations on the one hand and the programming/cost impact of ensuring compliance on the other. The pandemic may well amount to force majeure and give rise to entitlements to an extension of time under various standard forms, but short of a statutory requirement to close all sites or an employer’s act of prevention, a contractor is unlikely to recover any prolongation costs or additional costs of implementing the SOP.
Is a contractor effectively forced to make a Hobson’s choice between shouldering the substantial costs of implementing the SOP or exposing itself to enforcement actions by the HSE and claims from aggrieved employees? If so, termination may seem like the only other way out.
In such extraordinary circumstances, an uncompromising adherence to the black letter of the contract is unlikely to provide an answer. Indeed, the JCT’s covid-19 guidance recognises the need for “a pragmatic approach”, and the Cabinet Office has also provided guidance and model deeds of variation for granting contractual relief under JCT and NECs contracts.
Now more than ever, a spirit of solidarity and co-operation (as contemplated by regulation 8(4) of the CDM Regulations) goes a long way. Speaking as a litigator, parties are more likely to weather this storm if there is an honest recognition that most if not all contracts never envisaged these unprecedented challenges, followed by an open discussion among stakeholders to share the burden of keeping sites open. Exceptional times call for exceptional solutions.
Mathias Cheung is a barrister at Atkin Chambers, specialising in commercial and construction litigation, mediation, adjudication, and international arbitration