The construction industry and Coronavirus – what’s next?

In a letter back in March the Secretary of State for the Department for Business, Energy & Industrial Strategy, made it clear that construction sites should have remained open. In the same letter the Secretary of State also appeared to endorse the adoption on Construction Sites of the Construction Leadership Council’s (“CLC’s”) Guidance Note on Site Operating Procedures during Covid-19 (now in its third iteration) which he described as being “aligned” with “the latest guidance from Public Health England”.

The new guidelines recently released mirror to some extent the recommendations contained in the CLC’s Guidance Note such as:

• Increasing the frequency of hand washing and surface cleaning
• Using back-to-back or side-to-side working (rather than face-to-face) whenever possible
• Reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others)
• Staggering arrival and departure times to reduce crowding into and out of the workplace,
• Providing additional parking or facilities such as bike-racks to help people walk, run, or cycle to work where possible.
• Reducing congestion, for example, by having more entry points to the workplace.
• Providing hand washing facilities, or hand sanitiser where not possible, at entry and exit points.

So how are they different?

Perhaps the biggest difference between the CLC’s and the Government’s latest guidelines is not so much in the specific measures each recommends but rather in the fact that the Government guidelines now stress that those upon whose premises the construction operations are taking place, and not just the contractors working on those sites, have a duty to reduce workplace risk to the lowest reasonably practicable level by taking preventative measures.

The Government guidelines also emphasise the need for “all employers” to work with “any other employers or contractors sharing the workplace” so that “everybody’s health and safety is protected”. In this regard the Government guidelines recommend the sharing of risk assessments to assist co-ordination of activities and preventative measures on site.

The Government guidelines also contain a warning for those owners of premises where construction activities are taking place or are due to recommence that if adequate measures are not implemented then the HSE can take action such as issuing specific guidance through to issuing enforcement notices to help secure improvements.

There are gaps in the guidelines and bureaucracy could spiral

Whilst the latest Government guidelines are a welcome step towards protecting workers and those at whose workplaces construction activities are also taking or are due to take place, the need for all employers and interested parties to undertake risk assessments is likely to lead to a fair amount of paperwork and form filling.

Furthermore, in assessing risk those who own or are responsible for sites where construction activities are due to take place will also need to familiarise themselves with and understand, in far greater detail than before, the contractor’s planned activities and programme.

The risks are still very real

Those who have little experience of construction operations taking place on their sites would be well advised to engage specialist health and safety consultants to review and advise on the adequacy of the contractor’s risk assessments and proposed methods of working. Taking such a precaution will assist in demonstrating to other workers and occupiers of the site that appropriate measures and checks have been implemented.

Finally, in one section of the government guidelines it mentions creating options to protect vulnerable employees. But what is not clear is who makes this final judgement, and whether the employee agrees with the assessments of an ‘acceptable level of risk’. This ambiguity could still potentially cost certain people their jobs, if not their lives.