Construction Law International homepage  »  September 2020

 

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When everything is going online and staff are being asked to work from home, one can still hear construction activities going ahead in several sites in central London and beyond. This article aims to explore the arguments for and against keeping construction sites open during the London lockdown due to the Covid-19 pandemic. If a second wave of the virus eventuates, we may need to address these difficult questions again.

The Prime Minister and Chief Medical Officer announced that we should stay at home because of the health risks associated with community transmission of Covid-19. On construction sites, there is a real risk of transmitting the virus. Social distancing is challenging in supermarkets and even on the streets. How practical is it to apply this rule on a construction site?

The Construction Leadership Council provides recommendations that may reduce the risk of spreading the virus. For example, it suggests staggered start and finish times, removal of fingerprint scanners, staggering break times and asking the workforce to not go outside during a break. These recommendations are useful; however, screening for temperature prior to entering site may be another important precaution that can be taken on site. The dividing question remains: how do we ensure social distancing is maintained? And if it cannot be maintained, is continuing with construction work worth the risk of spreading the virus? The risk is not only to the workers, but also their flatmates or families. If the risk can be reduced by providing medical-grade masks to workers who cannot maintain the required social distance, then perhaps the government should insist these masks are provided.

Are construction activities needed now?

Whether all construction activities are critical is a complex question and is linked to the broader economy. At a fundamental level, construction work may not be considered as important as having food available in the supermarkets. However, at a macro-economic level, the contribution to the economy cannot be understated and there are limited activities that still need to be carried out. For example, essential maintenance of airport runways, railways, roads and port assets are all arguably critical to keep food and medicines flowing to the nation. However, commercial construction, such as office blocks, are arguably not essential in times of crisis and neither are speculative development works. What is considered ‘essential’ will depend on the scope and duration of the lockdown.

Parties to a contract may be motivated to continue site works for fear of potential liquidated damages claims, which may understandably put pressure on some construction firms to carry on working, especially when there is no direction from the government to stop. If the government can stop construction works except ones that are granted a permit to proceed from local authorities, this may alleviate some of the pressure on contractors and workers from continuing to work, subject to the particular terms of the respective contracts. The German response to Covid-19 provides a good example of how to protect the economy, at least in theory, from potential floods of claims and insolvencies. The Bundestag passed the Act on Mitigating the Consequences of the Covid-19 pandemic, which provides for a temporary right to suspend performance of contracts if the company cannot pay because of Covid-19 or if payment would jeopardise the economic basis of the business entity. The UK should consider similar measures to protect small businesses in construction and also to deter contractual claims from overloading the system.

Duty to construction workers

As most construction workers are self-employed through agencies, there is a need to make sure they are well informed of their rights. The UK government has established a job retention scheme where if an employer cannot maintain its workforce because its operations have been affected by Covid-19, the employer can furlough employees and apply for a grant to cover a portion of their usual monthly wage costs where the employer records them as being on furlough. This covers agency workers, which is definitely good news for the construction industry. However, one queries the extent to which construction workers are aware of their rights and would be working in fear of losing agency work in the near future. It should be noted that employees hired after 28 February 2020 cannot benefit from this scheme. The other concern is about who can claim on behalf of agency workers. It is also important to inform all construction workers of their rights under the UK government’s statutory sick pay scheme, which purports to cover everyone who becomes ill or has to self-isolate because of Covid-19.

What is considered ‘essential’ will depend on the scope and duration of the lockdown.

Coronavirus Act 2020

The UK enacted the Coronavirus Act 2020 to grant the government emergency powers to deal with the pandemic. The Act does not specifically mention construction or construction workers. However, under section 52, the government has a range of powers to ‘prohibit or otherwise restrict events or gatherings in England’ as well as powers to ‘close premises in England or impose restrictions on persons entering or remaining in them’ as per Schedule 22. These provisions give the government wide ranging powers. However, the mixed messages of allowing sites to be open and legislating against gatherings make it unclear if construction is exempt from section 52 and Schedule 22.

If one looks at the Health and Safety Executive for guidance, its website directs one to the government’s website. The government has not made it clear if all construction sites should shut down or keep working. Further clarity is needed to help construction companies plan and adapt to the crisis.

Conclusion

All lives are equal and construction workers need to be protected like all members of the society. The government has sweeping powers under the Coronavirus Act 2020 and should consider clarifying the contradiction between the Act and the very nature of construction activities involving the gathering of workers within close proximity.

Employment agencies and employers need to inform their staff of their rights under the coronavirus job retention scheme. The UK construction industry will be integral to the economic recovery that will follow Covid-19 and the government, through legislation, is better placed than market forces to put the brakes on collapse and claims.

 

Wala Al-Daraji lectures in construction law and management at the School of Applied Management of the University of Westminster, London. He can be contacted at w.aldaraji@westminster.ac.uk.

 

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