With the government having issued official guidance for operating construction sites during covid-19, Francis Ho and Hannah Fricker answer some key questions
What is the guidance and what does it cover?
On 11 May, the Department for Business, Energy and Industrial Strategy (BEIS) unveiled a framework for working safely on construction (and other) sites during the pandemic in a 30-page document titled “Working safely during covid-19 in construction and other outdoor work”. We call it simply the Guidance in this article.
Contributing to the Guidance were a number of businesses, trade unions and industry bodies, the devolved administrations of Northern Ireland, Scotland and Wales, Public Health England (PHE) and the regulator of occupational health in Great Britain, the Health and Safety Executive (HSE).
It covers work outdoors in the construction, energy and the utilities industries, farming and agriculture, forestry, waste management, other infrastructure, railway services and street and highway services. The use of “outdoors” is somewhat jarring since construction works obviously can and do take place inside buildings and other facilities. It could be that BEIS meant to refer instead to on-site operations (as distinguished from back-office activities or remote working) but some clarification is welcome.
The Guidance does not discuss the possibility of works taking place within people’s homes; these are already permitted for essential repairs and maintenance although subject to a number of safeguards. It is presumed the status quo there endures.
We focus below on the particular relevance of the Guidance to the construction and infrastructure sectors.
What is the purpose of the Guidance?
The government’s past messaging on the conduct of construction operations during the pandemic was criticised as muddled and lacking in detail. It confused many in the industry and helped foster a disjointed approach. Nonetheless, it was apparent that works could continue except in Scotland, where the Scottish government elected to shut down sites unless associated with “essential” projects.
With the government taking tentative steps to restart the economy while maintaining worker wellbeing, its rhetoric has become more resolute. It has announced that sectors that may open should open and to the extent the workers concerned cannot work from home then they should travel to their workplaces. The tantalising morsel of mass off-site manufacturing and robotics remains just that so there is little alternative to boots on the ground in this industry which employs 2.4 million. The Guidance aims to provide a sensible structure to enable the construction industry to continue or restart operations and work safely during the pandemic.
Until now, the industry had not been subject to special rules on covid-19. Regardless, contractors had shuttered developments while they established how to safeguard workers and re-evaluated supply chains. Some construction sites have since resumed operations, albeit with new processes in place. The Guidance may give many more the confidence that they can do the same.
What is its legal status?
The Guidance is non-statutory advice that employers, employees and the self-employed should take into account when discharging their existing legal obligations in relation to health and safety, employment and equalities.
It may be sensible to treat it as akin to an Approved Code of Practice (ACOP) published by the HSE. This government agency did not co-author the Guidance but had been consulted in its preparation. Empowered under The Health and Safety at Work etc. Act 1974, the HSE monitors and is able to enforce directions from the government, PHE, Public Health Wales and Health Protection Scotland (a corresponding body exists for Northern Ireland). In addition, it oversees a range of regulations and ACOPs enacted under the same statute.
Unless stated otherwise, it is not necessary to follow an ACOP – organisations may take alternative actions that satisfy the objectives of any relevant regulations. Nonetheless, there are compelling reasons to do so. Complying with the guidance makes it far more likely that an authority permitted to enforce health and safety law (including the HSE) or the courts would regard a party as having conformed with the law. Less conventional approaches can be harder to explain.
More assurance may come to construction parties if the HSE and PHE could formally confirm their full endorsement of the Guidance. Perhaps that will come in time. Even so, it is prudent to now review any existing site operating procedures and update them as necessary to adhere to the Guidance.
Will the HSE release an ACOP specifically covering covid-19?
This seems unlikely at present though the HSE has released advice on discrete topics concerning the novel coronavirus. Another government-linked publication covering effectively the same ground as the Guidance would unnecessarily obfuscate and duplicate.
The HSE has not issued or updated an ACOP for several years. It declined to produce one to accompany the then-new Construction (Design and Management) Regulations in 2015, offering guidance instead and suggesting that it was more appropriate for industry to produce specialised documentation for different segments of the market. Similarly, it withdrew the ACOP for The Management of Health and Safety at Work Regulations 1999 in 2013 and replaced it with guidance.
That is not to say that an ACOP could not eventually surface but, given its current national importance, it’s likely the government would deal with any significant announcements on covid-19 itself for the foreseeable future.
Where does the Guidance leave the Construction Industry Council’s Site Operating Procedures?
Until the arrival of the Guidance, those managing construction sites had been left to their own devices in reconfiguring operations and working patterns to address the risks of covid-19. Unto the breach came the Site Operating Procedures (SOPs) from the Construction Leadership Council, currently in their third edition and based on guidelines from PHE, as a baseline to assist the sector. The SOPs are not the only such example – the Institution of Occupational Safety and Health has, for one, published practical covid-19 risk assessment guidance (though not purposely tailored to construction sites).
Even so, the SOPs are essentially a creation of industry and carry no special status as far as the HSE is concerned. They represent an attempt to translate PHE guidelines into practical considerations that can be applied to a wide range of projects. There is no acknowledgement within the Guidance of the SOPs’ existence but it seems clear that the government views its own effort as the new standard-bearer.
As a matter of best practice in safeguarding workers, there may be benefit in comparing the two documents and adopting the more stringent standard where there is discrepancy. Many, on the other hand, will prefer the clarity and ease of keeping to a single document. They will note that, unlike the SOPs, the Guidance benefits from the involvement of and, one hopes, the endorsement of both PHE and the HSE.
It is eminently possible that, the Guidance having since emerged, the SOPs have fulfilled their purpose and will be retired. BEIS has said that it expects the Guidance to be updated from time to time and has invited feedback so there is scope for refinement.
If, on the other hand, a new edition of the SOPs were to emerge, we would expect it to be much changed so as to avoid conflicting with the Guidance, perhaps building on any areas where the latter is deemed unclear or lacking.
Is it sufficient for construction parties to put the Guidance into effect?
While it is sensible to include a provision in any new construction contracts requiring observance of the Guidance, parties still need to comply with other obligations in relation to health and safety, employment and equalities. Crucially, they need to be mindful where the introduction of social distancing and revised site procedures to deal with the coronavirus (or, indeed, a failure to do so) potentially affects compliance with various regulations under The Health and Safety at Work etc. Act 1974, including any associated ACOPs and HSE guidance. Some of these are displayed below.
Construction-related statutory instruments issued under The Health and Safety at Work etc. Act 1974
- The Construction (Design and Management) Regulations (CDM Regulations) 2015
- The Construction (Head Protection) Regulations 1989
- The Control of Asbestos Regulations 2006
- The Control of Noise at Work Regulations 2005
- The Control of Substances Hazardous to Health Regulations 2002
- The Control of Vibration at Work Regulations 2005
- The Gas Safety (Installation and Use) Regulations 1998
- The Health and Safety (Consultation with Employees) Regulations 1996
- The Lifting Operations and Lifting Equipment Regulations 1998 (LOLER)
- The Management of Health and Safety at Work Regulations 1999
- The Manual Handling Operations Regulations 1992 (as amended)
- The Personal Protective Equipment at Work Regulations 1992
- The Pressure Systems Safety Regulations 2000 (PSSR)
- The Provision and Use of Work Equipment Regulations 1998
- The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR)
- The Work at Height Regulations 2005
- The Work in Compressed Air Regulations 1996
Since the CDM Regulations apply to clients and designers as well as contractors, they have wide-reaching significance and often feature in any discussion of covid-19. Given that they impose an ongoing duty on clients ensure that construction works are undertaken without risk to the health and safety of persons associated with or affected by the works. Reasonable measures must be implemented to achieve this.
Furthermore, adequate welfare facilities must be provided on site, including water for hand washing. Suitable adjustments to deal with covid-19 include additional washing facilities, hand sanitisers, an increase in back-to-back or side-to-side working as opposed to face-to-face and enhanced cleaning procedures throughout, including around dedicated eating areas. Regardless of what the contract says, the client must also see that the principal designer and principal contractor discharge their respective obligations.
The principal contractor is responsible for health and safety matters during the construction period and for introducing and maintaining measures to protect the workforce, as far as reasonably practicable. It must also keep the construction phase plan updated with any necessary input from the principal designer who monitors and co-ordinates health and safety matters during the pre-construction phase which may continue during works on site.
It should be remembered that the CDM Regulations are only one of several sets of regulations. As well as producing a risk assessment tackling the risks of covid-19, it is advisable to assess and modify if necessary any risk assessments and procedures relating to other secondary legislation. The potential exposure of a person on site to covid-19, for instance, must be reported pursuant to Regulation 9(b) of RIDDOR and naturally any testing of plant and equipment pursuant to LOLER or PSSR should be carried out while, in the words of the Guidance, maintaining social distancing wherever possible.
What are the consequences of breaching any of the regulations made under The Health and Safety at Work etc. Act 1974?
Non-compliance is a criminal offence, the penalty for which may be an unlimited fine and/or imprisonment. Officers or managers of a culpable company may become liable through consent, connivance or neglect and directors can also be disqualified from acting as directors.
Contracts often include an obligation on one or more parties to adhere to any applicable laws. This gives an injured party a potential contractual remedy for such breach. By way of example, the JCT contracts oblige both employer and contractor to comply with the CDM Regulations (and ensure compliance by other roles when appropriate). Breach by one party entitles the other to terminate the contractor’s engagement. Equally, there are non-legal consequences such as a lasting damage to reputation which may adversely impact existing or future work and recruitment and workers may refuse to attend site for fear their health and safety is imperilled.
What is the geographic applicability of the Guidance?
Although the Guidance is expressed to include contributions from the administrations of Northern Ireland, Scotland and Wales, public health is a devolved matter and consequently any requirements of the Welsh government, the Scottish government and the Northern Ireland Executive would be expected to take precedence over it in those nations.
The Guidance makes no mention as to whether the Health and Safety Executive for Northern Ireland, Public Health Wales, Northern Ireland’s Public Health Agency or Health Protection Scotland saw or opined on its contents ahead of publication. In any event, one might not expect the last of these to comment until steps have commenced to reopen the majority of sites in Scotland.
Where can I obtain a copy of the Guidance?
It can be found at www.gov.uk/workingsafely.
Francis Ho is a partner at Penningtons Manches Cooper and chair of the CIOB’s Contract & Procurement Special Interest Group. Hannah Fricker is a trainee at Penningtons Manches Cooper.