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On 31 March 2020, a letter addressed to the UK construction sector was issued by The Rt Hon Alok Sharma MP, Secretary of State for the Department for Business, Energy and Industrial Strategy.
The Secretary of State’s letter acknowledges that for many working in the construction industry, remote working is not possible and continued operations on-site may be required. The Secretary of State has underscored the importance of health and safety in the workplace, in line with Site Operating Procedures published by the Construction Leadership Council (“the CLC”).
This article provides an overview of the recently published Site Operating Procedures together with key safety measures that site operators should seek to implement. The article will also explore potential legal issues that could arise in the event of non-compliance with Government advice and procedures.
Version 1 of the Site Operating Procedures (“SOP”) was issued by the CLC on 23 March 2020. The CLC has recommended that the SOP be implemented by all operational construction sites, to ensure a consistent approach is adopted across the industry. Version 1 of the SOP covers a range of protective measures for on-site working including; travel to work, site access points, hand washing facilities, catering arrangements and distancing of workers.
On 2 April 2020, a revised version of the SOP was issued which imposed stricter procedures. These include, restrictions on travel via certain methods of public transport at peak times and maintaining shift patterns to keep the same groups of workers together. However, one of the most significant changes relates to the distancing of workers.
Version 2 of the SOP provides that workers should not undertake any activities in which they are required to be less than two metres of each other, even if Personal Protective Equipment (“PPE”) is available. This is in contrast to Version 1, which provides that where it is not possible or unsafe for workers to distance themselves by two metres, such work can be undertaken provided it is deemed essential and protective measures such as PPE are worn.
Following the publication of Version 2 of the SOP, the CLC received widespread feedback from construction organisations in which concerns were raised as to the viability of the revised procedures.
Shortly after publishing Version 2, the CLC issued a statement advising that Version 1 of the SOP should be followed whilst a review of the feedback on Version 2 is considered.
This means that for now, organisations should comply with the first edition of the SOP, which can be accessed here.
Version 1 of the SOP encourages site operators to implement proactive steps to ensure they are compliant with the SOP. For example;
If organisations cannot comply with the SOP, works should be suspended. Moreover, organisations which fail to keep up with and implement Government advice on social distancing run the risk of being shut down. This in turn may have legal implications for organisations subject to contractual obligations, particularly where reckless or negligent non-compliance with the SOP has led to an enforced suspension of site operations. In such circumstances, the common law principle of frustration may not apply and a breach of contract could occur.
In accordance with the Construction, Design and Management Regulations (“CDM Regulations”), awareness and implementation of the SOP will be of particular significance for Principal Contractors. In order to comply with the SOP, CDM Regulations and their contractual obligations, Principal Contractors should implement the requisite safety measures and provide training to any sub-contractors and suppliers engaged on site. It is important that Principal Contractors undertake such steps to ensure the safety and well-being of on-site workers and other essential visitors.
Moreover, Principal Contractors may also be under contractual obligations to submit revised Method Statements to the party from whom they have been retained. When amending Method Statements, contractors should give consideration to new Government guidance and the SOP.
This article demonstrates that on-site safety measures must be implemented across the UK in order to ensure the future viability of construction services. Site operators should seek to implement protective measures consistently to ensure the safety of workers and continuity of business operations, having regard to the latest CLC and Government advice.
The extent to which such measures will be implemented remains to be seen. Indeed, we have already received reports of sub-contractors ceasing activities where they are not satisfied that Principal Contractors have put in place protocols that are in line with the SOP. Legal recourse may become necessary to resolve issues resulting from non-compliances and subsequent site suspensions.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Construction team at Cleaver Fulton Rankin for further advice or information.