Coronavirus: Can Construction Workers Attend Sites?

The official government policy is that people can attend the workplace, regardless of whether they are termed ‘key workers’, provided they follow the 2 metre social distancing rule and the work cannot be done from home. Downing Street have confirmed that construction work can continue if it can be done following the social distancing advice, but construction workers have raised doubts as to whether this is practical or achievable. Attempting to enact such measures onsite is likely to drastically slow down progress, potentially causing contractors to incur further costs in the form of liquidated damages if they miss practical completion dates. Another consideration is that worker welfare facilities may have to be altered/moved to accommodate a larger area to comply with social distancing measures.

Construction businesses have responded differently to the latest advice. Transport for London have confirmed work on its Crossrail sites has been suspended but essential maintenance will continue, in line with Mayor Sadiq Khan’s statement that construction workers should not be attending sites unless they are working for ‘safety reasons’. Other housebuilders, including Taylor Wimpey, have opted to close sites entirely. The Chief Executive of Bouygues UK also cited a national shortage of personal protective equipment and sanitising products amongst their reasons for shutdown. A key consideration for employers is likely to be whether the current COVID-19 epidemic constitutes ‘force majeure’, as a relevant event for suspension and/or termination of the construction works under any standard form design & build contracts such as the JCT that they may have used.

At present, much of the onus as to whether construction sites, and indeed workplaces in general, should remain open is being left to employers. Employers should be aware that forcing employees to attend the workplace to perform non-critical roles could lead to legal claims from a health and safety perspective, so should aim to be responsible in asking employees to attend work. Under the CDM Regulations which applies to all building and construction work, principal contractors have a duty to ensure that, so far as is reasonably practicable, construction work is carried out without risks to health or safety.  For many construction workers who are self-employed, the pressure to attend sites should hopefully be alleviated by announcements expected shortly regarding wage protection.

We expect that further guidance on whether construction sites should remain open will be issued soon and we will keep this page updated.