This is the problem facing the construction industry at the moment as developers and contractors struggle to decide which advice they should heed and whether or not their sites should remain open.
In times of uncertainly, and where clarity is nowhere to be found, we, as lawyers often find it easier to go back to basics and read the relevant statute and industry specific regulations.
The Construction (Design and Management) Regulations 2015
Part four of The Construction (Design and Management) Regulations 2015 sets out the general requirements for all construction sites.
It says in order for a construction site to be considered a safe place it “must be, so far as reasonably practicable, made and kept safe for, and without risks, to the health of a person at work there”.
So what does this mean in light of the advice that we should only be going to work whether this absolutely necessary, and that we should remain at least two metres away from anyone who doesn’t belong to the same household as us?
It’s apparent governmental advice creates more questions that it seeks to answer.
Boris Johnson did not specifically state construction sites should close and Rishi Sunak confirmed sites can remain open, as long as this is done safely; however, Scotland’s first minister, Nicola Sturgeon, said all construction sites should close.
The advice from the UK government follows the 2015 regulations, as long as there is no risk to health, sites are considered safe.
Strict interpretation
There is no suggestion, on strict interpretation of the regulations, that construction sites must be temporarily shutdown until COVID-19 is under control.
There is no doubt employers will have practical measures in place to try and safeguard contractors from coronavirus, but can employers really guarantee there is no risk to the health of those on-site?
It is unlikely contractors will be able to remain the recommended two metres apart and it is even more unlikely employers will be able to prevent gatherings of more than two people, especially at break and lunch times.
Advice
Although construction sites are permitted to remain open, for now, we would urge contractors and developers to consider the procedures in place for preventing the spread of coronavirus. More importantly, we would urge them to assess whether they can fully satisfy themselves that they are, so far as practicable, keeping sites safe and free of risk to health, not only for their contractors, but also those people’s families.
We expect the position to be clarified in the coming days and will provide a further update when this is available.
In the meantime, if you would like to discuss the impact that a temporary shutdown would have on your business or steps you can take to mitigate loss please get in contact with Jennifer Young or Sarah Stuart.
