Confusion still reigned as we went to press over how construction companies should respond to the conflicting messages being issued by governments over whether sites can, or should, or might be able to safely operate. Guidance has been issued – full of terms like should and sometimes must – but uncertainty persists over what force this guidance has – it should not be confused with actual law, it has been advised.
A month ago the Westminster and Scottish governments had clearly opposing ideas – Scottish sites should shut down, sites in England could stay open as long as social distancing was observed; but many contractors thought they should err on the side of caution and shut down. Much of Scottish construction remained closed as we went to press this month, apart from work on Critical National Infrastructure sites, in sectors like water and waste, energy and transport, but there was a steady stream of news about sites in England that had shut down recommencing work.
From the window of CL’s own office in Kent can be seen a largish residential construction site which shows signs of activity in the last few days of April, having been inactive for three weeks or so, and a smaller residential site where work has never stopped. Many contractors are taking serious steps to ensure that safe working practices as recommended by various industry bodies are adhered to, and a new supervisory category of Covid-19 Supervisor has been deployed on some sites.
On the same day in late April as we read that major house builders are back at work we read that large sites like Battersea are staying closed. The same day ABI Barbour reported that some £10 billion of work restarted in one week in late April.
The long term fallout from the pandemic could obviously be profound in many ways, but the lack of coherence in the guidance given to construction could give rise to consequences of the government’s making. Much responsibility has been dumped onto managers and site supervisors by the efforts to keep sites open while working safely. All of the normal health and safety related legislation remains in place and it is moot to what extent any of this ‘guidance’ will be taken in mitigation if prosecutions arise under actual law.
Companies are being advised by lawyers to make sure that they first of all take all possible measures to protect their workforces. Risk assessments will have to be updated and kept under review, and social distancing and cleaning of work environments and equipment will need to be supervised.
In addition, a paper trail should be put together to prove that your company has acted properly and in a timely manner in response to the pandemic. Your best defence might be to keep proper records of the steps that were taken, and why those steps were regarded as sufficient. Even keep your own copies of whatever guidance has been issued, and proof of what your company did in response. In the event of being prosecuted by HSE or having to defend claims from workers or their families, being able to prove that professional advice was sought and acted on will be crucial. Failure to do this might mean a company’s failure to survive Covid-19.
Nick Barrett
Editor