The Secretary of State for Business, Alok Sharma, on Wednesday released an open letter addressed to everyone in the UK construction sector, paying tribute to those “working tirelessly within the construction industry” and addressing the hotly contested debate as to whether all “non-essential” construction sites should be forced to shut down. A full copy is available to view here.
In these challenging times, he was at pains to say that the government recognises that the construction industry is “delivering for our Nation through this difficult time”. The government’s position remains that “the economy needs all our support´” and workers should continue to travel into work where appropriate arrangements can be put in place.
Site Operating Procedure (“SOP”)
In terms of determining how the industry can ensure the safety and wellbeing of those who are continuing to work, the government letter placed much emphasis on the Site Operating Procedure (“SOP”), published by the Construction Leadership Council.
The SOP sets out guidelines which all sites are required to adhere by, in order to comply with the Government’s recommendation on social distancing in order to minimise the spread of the virus.
This includes recommended procedures to be observed when travelling to and from the site, site access points, hand washing, cleaning etc. The full set of measures introduced can be found here. Consistent failure to implement these measures may result in the requirement of site closure.
The SOP is introduced to protect the workers, their colleagues, their families and the general public, however it is essential that general health and safety requirements and regulations are not overlooked. In particular, if certain aspects of the project can no longer be achieved as a result of lack of suitable supervision or the government’s social distancing cannot be achieved, these should not be carried out. It is essential that sensible decisions are made early on to ensure the safety of all those involved.
It is clear that there is not, and cannot be, a “one size fits all” policy, as each site will have to consider these matters carefully, including by way of a careful consideration of whether or not social distancing can be maintained. This too will obviously depend on what packages of work / trades are underway.
Clearly, more and more projects are having to suspend works in any event, as materials and/or labour become unavailable.
However, the guidance does provide a potentially useful yard stick when it comes to evidencing what reasonable steps can, and cannot, be taken to mitigate the current situation, particularly in the context of operating the contractual provisions for extensions of time. It will therefore be prudent to “paper trail” decisions that are taken, by reference to this guidance, as well as the project / site specific considerations. As a reminder, our article published last week considering the operation of those mechanisms under the most commonly used standard form contracts can be read here.
These are obviously unprecedented and extremely concerning times, particularly whilst the likely time frames of the most stringent restrictions, and the likely shape and speed with which they can be de-escalated, remains so uncertain.
As well as being on hand to help with any issues arising from the operation of the contractual machinery, we are also helping many of our clients and contacts resolve issues in relation to contracts that were already under negotiation, or where disputes may have arisen or be exacerbated by the current situation.
In addition, our colleagues across our commercial and private client group have published a range of useful guidance notes concerning the various emergency government measures, and those resources are available on a dedicated page of our website, by clicking here.