The whole of the UK has been in lockdown since the Prime Minister's announcement on Monday 23 March with four very limited exceptions. Under one of those exceptions, people are still able to go to work where their job absolutely cannot be done from home.
Construction work clearly cannot be done from home; but does that mean that it can continue, or do sites have to close?
Scottish construction sites have been advised to close
The Scottish Government is following a cautious approach to the current public health measures and the First Minister has recommended closure of construction sites in Scotland unless the work is for an essential building such as a hospital. This position may be reviewed in future if safe rules can be put in place but in the meantime, it is recommended that sites are shut as a precaution.
In the absence of a statutory requirement to stop work, some main contractors have continued to operate, waiting for an employer instruction to cease works for fear of contractual repercussions. Any contractors continuing to operate non-essential construction works should engage with the client immediately and take legal advice on any instruction that they continue work.
English construction sites are open
In England, however, the Health Secretary announced in a briefing on 24 March that construction workers could and should continue to go to work as long as they are able to remain two metres apart at all times. The majority of English construction sites therefore remain open.
There are some exceptions to this and the list is growing all the time as Taylor Wimpey and Persimmon have suspended the majority of their works and only essential work will be carried out on the Crossrail and HS2 rail projects. With mounting pressure to close, others may soon follow suit.
Who decides if a construction site will close?
In Scotland the government has recommended the complete closure of sites. Closure on this basis is a circumstance outwith the control of the contractor and they should look to the terms of their contract to determine what the consequences of this will be.
In England, where there is no government advised closure, the contractor has control of the site during construction operations and it is for them to decide whether or not their employees can safely continue to operate in compliance with the public health restrictions at this time.
Some relevant considerations are the risk of workers catching or transmitting Covid-19 whilst travelling to and from work, whilst using shared toilet and canteen facilities on site, or during construction operations that require proximity of less than two metres between workers. There is also an enhanced risk associated with any injuries occurring on site at a time when the health service is severely overburdened. These health and safety factors are being weighed against commercial factors and the risk that taking the decision to close, without reaching agreement with the employer and without a government mandate to do so, risks exposure to penalties for breach of contract.
In Scotland, whether or not your project insurance cover will respond as a result of the mandatory, government advised closure will depend upon the wording of the policy but it is more likely that such circumstances will trigger cover than in England, where site closure is not (yet) mandatory, as suspension of work on English projects would be in response to general public health guidance, not a formal government recommendation.
Get in touch
If you have any concerns about the implications of construction site closures or how contract provisions will be construed in light of the position in each jurisdiction please contact a member of our construction team to discuss your options.