Following the restrictions introduced on 23 March 2020, the Government indicated that essential building works should continue, and those building sites remain open, subject to following public health guidance in particular social distancing. Essential building works include making buildings safe, such as progressing the remediation of high-rise buildings with unsafe cladding, particularly those with unsafe Aluminium Composite Material (ACM) cladding; and maintaining measures to ensure buildings are safe ahead of remediation.
Numerous high profile contractors have, however, shut down construction sites on the basis that, in their view, they (and/or their supply chain) are unable to safely carry out works in accordance with the Government’s guidance on social distancing etc. This is particularly acute where residents are still in occupation. There are also reports of sub-contractors, such as scaffolders, requesting safe-guarding measures that are logistically challenging, to say the least, such as full PPE for all workers on site, surface cleaning, and breathing apparatus of the type normally used in asbestos removal.
The latest Government guidance reiterates the point that this work is critical to public safety and explains that the Government “has now put in place additional project management support with construction expertise to help oversee remediation. The additional support will identify blockers to progress and work directly with those responsible for remediation to support individual projects.” It is not yet clear what form this support will take, although the “blockers to progress” are presumably the contractors who have stopped work, and it appears that the Government’s support team will work with the building owner and not exert direct pressure on the contractors. It is also not clear what “teeth” this support system will have.
The Contractors’ position and the possibility of carrying on works and reopening sites
Contractors will be concerned about exposure under health & safety legislation and site workers use of public transport to get to and from sites.
The Health and Safety at Work Act (“HSWA”) is the primary piece of legislation dealing with occupational health and safety in Great Britain and the basis of numerous regulations such as the Management of Health & Safety at Work Regulations (“MHSWR”) and the Construction (Design and Management) Regulations 2015 (“CDM”).
The exceptional circumstances of the Covid-19 pandemic have created an extra burden on employers, as they seek to ensure they are protecting their workforce and minimising the risk of spread of infection. As a result of guidance issued by Public Health England and the Construction Leadership Council, many within the construction industry have found the burden insurmountable and determined that they cannot reasonably manage the requirements of the guidance and the health & safety legislation whilst operating a live construction site. Of particular relevance to the Covid-19 pandemic, the legislation requires:
- The HSWA sets out the general duties which employers have in (1) “securing the health, safety and welfare of persons at work” and (2) “protecting others against risks to health or safety in connection with the activities of persons at work”;
- The MHSWR requires “Every employer shall make a suitable and sufficient assessment of (a) the risks to the health and safety of his/her employees to which they are exposed whilst they are at work; and (b) the risks to the health and safety of persons not in his/her employment arising out of or in connection with the conduct by him/her of his/her undertaking”; and
- The CDM requires a client to ensure that suitable arrangements for managing a project, including making sure that sufficient time and resources are allocated. The contractors it engages must plan, manage and monitor construction work under their control so it is carried out without risks to health and safety. The workers employed by contractors must be consulted about matters which affect their health, safety and welfare, and take care of their own health and safety, and of others who might be affected by their actions. In summary, the Principal Contractor must plan, manage and monitor the construction phase and coordinate matters relating to health and safety during the construction phase to ensure that, so far as is reasonably practicable, construction work is carried out without risks to health or safety.
Whilst the Government has expressed a clear view that essential safety works should continue, this is subject to the caveat that these be carried out in accordance with public heath guidance, in particular avoiding public transport where possible and social distancing.
As a practical matter, the difficulties of maintaining social distancing, i.e. a 2 meter separation, and mitigating the risk of contact with the Covid-19 virus on surfaces etc., in the context of a building site are manifold, in addition to the risks travelling to and from the site on public transport. In theory, it is possible to maintain separation on scaffolding or having one tradesperson working in a room, but the reality is that most works involve teams working in close proximity, which generally cannot be carried out in accordance with the Government’s guidance.
In terms of travel, although not recommended except for essential journeys, a significant proportion of workers travel to sites by public transport, frequently during peak hours. TFL is requesting that only key workers use public transport, as they themselves are operating a reduced service (both due to limited staff availability and in an effort to curb potential spread of infection) so services remain busy and platforms and carriages remain crowded at times.
Each building site, and the works to be carried out, presents a unique set of circumstances that must be assessed by the contractor, who is responsible for the site, the safety of workers on that site, and must also take account of any residents in occupation (in addition, we are aware of reports of significant tensions between residents and workers). In this respect, it is hard to second-guess a contractor that has carried out a risk assessment and determined that the site cannot be run safely. However, that is not to say that the parties cannot explore (on a case by case basis) whether or not there are certain works that can be carried out within the Government’s safety guidelines with individual contractors.
Experts’ and other construction professionals’ responses
Most experts and construction professionals have taken a similar line to contractors – whilst recognising that essential works should be carried out, this must be done subject to public health guidance, in particular social distancing.
Experts, for instance, are taking the view that site visits will only be considered on a case by case basis, subject to their own safe-guarding requirements, such as:
- Remote controlled MEWP or MEWP controlled from the ground to ensure that the basket is only accessible by one person;
- All attendees to be 2 meters apart from each other;
- Any opening works up to be 2 meters away from any ventilation duct;
- No access into or through residential flats;
- Barriers at ground floor level to impose separation restrictions between operatives, experts and the public;
- Limit works close to windows. Tape up any trickle vents, and ensure windows are closed when carrying out works; and
- Residents to be fully aware of works and the 2 meters separation, closing windows etc.
Such investigations potentially involve a number of parties (opening-up contractor, respective experts, and representatives from the client and original contractor), who would ordinarily be in extremely close proximity. In light of the difficulties, there is a preference to explore technical solutions to enable inspections to take place remotely, including the use of live webcam feeds whereby:
- Someone (possibly a videographer) attends the opening-up at a date and time convenient to all experts;
- They film and transmit the opening-up via a video-conferencing facility (such as Microsoft Teams or Zoom) to the experts who are working remotely;
- The experts can communicate with the person at site to give directions in relation to the filming/opening-up; and
- Photographs can be taken in parallel to the above.
Another alternative, although somewhat less reactive, is to carefully scope out an opening-up exercise and have this carefully recorded using high definition video and photographs.
Summary
The Covid-19 pandemic is presenting a range of challenges to the construction industry, particularly in relation to the investigation of safety defects and remedial works, including the potential for delay and/or increased costs. We anticipate that the Government will maintain its stated objective of continuing with these essential works, and the challenge will be for building owners, their advisers and experts, and the contractors and other construction professionals engaged in carrying out those works to attempt to mitigate and overcome those challenges where possible.
For more information on essential safety works and how Covid-19 is impacting upon construction sites, please contact Michael Wharfe, Mark London or Matthew Cocklin.
