Dispute Resolution Article
14 May, 2020
Following the announcement made by Boris Johnson on Sunday, employers across the construction sector are being faced with the difficult task of determining what in practical terms a safe return to work looks like. The message is clear that construction should continue if it cannot be reasonably done from home and if employers can comply with guidance on social distancing issued by Public Health England. It is far from easy weighing up those practical considerations alongside your contractual obligations and your duty to complete the projects and ultimately manage your contracts.
Gavin Fraser, a Senior Policy Advisor within the Department for Business, Energy and Industrial Strategy has today been the lead speaker in an informative seminar hosted by HAYS about what it means for a safe return to work for the construction sector and how employers balance (1) the need to resume work on site with (2) the concern for its workforce and the public along with the general spread of infection. The key question is how do we ensure that measures implemented across the sector are practical, proportionate, enforceable, and consistently applied?
Our insurance team highlighted in a recent article that employers have a duty to reduce workplace risk to the lowest reasonably practicable level by taking preventative measures.
Guidance was issued on Monday as to the latest version of what working safely during COVID-19 looks like for the Construction Sector. This guidance sits alongside the Site Operating Procedures v3 released by the Construction Leadership Council which aims to provide practical guidance on how to implement government policy.
There are two objectives contained within the guidance:
The guidance makes clear that risk assessments need to be updated to address the risk of COVID-19 and importantly shared with the workforce.
Preventative measures suggested within the guidance include:
The guidance does add that PPE beyond normal is not beneficial and should not be encouraged. In terms of face coverings, they may be marginally beneficial and support should be given if employees choose to wear face coverings but they are not being forwarded as necessary at this stage.
We appreciate that any return to work is going to be staged with sites that have re-opened largely working at limited capacity of around 20% and no predictions have been made as to how quickly this is going to be scaled up. As such, it is inevitable that projects are going to be disrupted with programmes delayed or re-worked.
Our recent article Delays due to COVID-19 - Act quickly and formally request extensions of time gives helpful tips as to how to manage delays.
The preferred course of action for both parties would be to collaborate and work together at an early stage when faced with delay and disruption. That is also the approach that the Construction Leadership Council are encouraging within their Contractual Best Practice Guidance. The sector has been asked to work together to support the long-term health of the sector by constructively resolving all contractual disputes arising from the pandemic.
We remind you to keep accurate and detailed records of all communications and decisions taken when navigating these challenging times.
For more information contact Lucy Bailey in our Construction & Infrastructure department via email or phone on 0333 207 0677. Alternatively send any question through to Forbes Solicitors via our online Contact Form.