Since 11 May, when the Government published its ';recovery strategy' and guidance for employers and workers to make workplaces safe during the pandemic, we have all been seeking clarity on what is to become the ';new normal' in all areas of our lives in both the short and the longer term. Prior to this easing of restrictions, for the majority of us in the UK, ';lockdown' was pretty clear and straightforward. For the construction industry, however, a consistent theme from the outset of the pandemic has been a lack of clarity from the English Government .
Conflicting statements at the end of March about site shut down swiftly followed by suggestions that work may continue provided workers could maintain a two metre distance, created uncertainty and what Construction News described on 6 April as a ';patchwork of construction activity' caused by leaving firms to ';decide for themselves if work can continue in accordance with sketchy government advice'.
Mine of information or minefield?
Since then, in addition to the passing of the Coronavirus Act
2020 (under which nothing has been actually done) and The Health
Protection (Coronavirus, Restrictions) (England) 2020 (as amended)
(the ';Regulations'), there has been a plethora of advice,
guidance and government statements regarding social distancing and
safe working (the most recent among them being the Government's
';Staying Alert', ';Staying Safe', the
';FAQs' and the sector focused construction industry
'Covid-19 Secure' guidance, published on 11 May).
Unfortunately, the ever increasing number of pieces of government
guidance (now 13), none of which takes precedence over the other,
are not consistent and have no obvious link with the Regulations.
In addition, the language used in the guidance is couched in terms
of ';recommendations', ';considerations' and
';tools to think about what you need to do' rather than
clear rules with which to comply, suggesting that individual
businesses should decide for themselves whether or not construction
work may
continue and how this should safely be undertaken. This presents
both clients and their contractors alike with challenges to
mitigate the effects of the inevitable disruption of social
distancing.
The construction industry's response
The construction industry has responded with its own guidance
intended to introduce consistent measures. The Site Operating
Procedures (SOP4), published on 20 May, is the most recent
iteration of the Construction Leadership Council's
industry-recognised guidance. It includes guidance on travelling to
work, safe access and egress, welfare facilities, planning work to
avoid close working, and so on, and recent technical updates on
working safely, such as one-way systems and the removal of the
requirement for face-to-face contact to be kept to 15 minutes or
less. It acknowledges that Government guidance references what
';businesses should consider' where social distancing
guidelines cannot be followed in full, but itself clearly states
that 'The health and safety requirements of any construction
activity must not be compromised at this time. If an activity
cannot be undertaken safely, it should not take place”. In
addition, the CITB and the CLC have released a whole library of
comprehensive and interactive
checklists, forms, risk assessment templates and toolbox materials
to help construction employers to apply the SOP3 and now SOP4 in
practice. Although this guidance stops short of an actual set of
hard rules, on a practical level at least help seems to be at hand,
and both the client and its contractor should ideally work together
to ensure that responsible (and not reactive) decisions are being
made and that accurate records are being kept.
From a legal perspective...
But, legally speaking, where does all this leave the parties to the contract? As there is no single piece of advice or document which clearly sets out what parties must or must not do and the legal status of the guidance and its interrelationship with the Regulations is unclear, it raises the question of whether the guidance is just ';guidance'. If it is a choice whether or not to comply with it, who bears the consequences if a party's obligations under the contract become more onerous or even impossible as a result? It is hard to reconcile this with the Government's position that it will be checking whether the guidance is complied with and that enforcement action will be taken if it is not – this feels more akin to an obligation to comply rather than a choice. As Sean Wilken QC of Keating Chambers has succinctly put it, 'it's complicated'!
It is therefore not easy to determine the impact that Covid-19
will have on projects and the interpretation of the construction
contracts underlying them. The contractual mechanisms that a party
might seek to rely on to obtain relief from its obligations and to
transfer the risk to the other party might be force majeure,
frustration, change of law or variation by necessity. For example,
a contractor might cite force majeure as a reason for delay to its
works and seek an extension of time (so relieving it from the
requirement to pay liquidated damages). Causation is imperative,
however, and the contractor would therefore need to demonstrate
that the delay event has had a direct impact on its programme and
that it has endeavoured to mitigate the effect of any such delay.
It is fairly clear that a complete lockdown or the collapse of an
entire supply chain would qualify as such trigger events but it is
not so clear whether the impact of social distancing or crippling
under-productivity on site as a result wou
ld. The harsh reality is that just because performance is more
difficult or more expensive does not qualify it as a relief event.
Ultimately, each case and claim is fact specific and will need to
be judged on its merits once the full effect (and the guidance) is
more clearly understood.
In Part 2, we look further at responses within the sector and, as we all hopefully start to see light at the end of the tunnel, what may potentially lie ahead for the industry.
Originally published Withersworldwide, May 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.