While many are adjusting to a ‘new normal’ as result of the impact of the Coronavirus (COVID-19), employers are understandably focused on ensuring the financial viability of their business and the well-being of their staff. In promoting these objectives, it remains important for employers, particularly in the construction sector, to be aware of and have regard to the statutory and common law health and safety duties they owe to their employees, and anybody who may be affected by their business.
We’ve been contacted by and have been advising many construction sector employers who are uncertain about their legal obligations as a result of the emerging position concerning the Coronavirus.
Here, we look at and discuss the extent to which employers within this sector can continue to operate their business at present in the light of:
- Employers’ statutory and common law duties
- The Scottish Government’s guidance
- The Coronavirus Act 2020 and the Health Protection (Coronavirus) (Restrictions) (Scotland) (Regulations) 2020
We also address some of the frequently asked questions arising from the duties, the guidance and the new legislation.
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Employers’ statutory duties
Employers are subject to numerous statutory health and safety duties, including those in the Health and Safety at Work Act 1974 (the 1974 Act). These statutory duties require employers to:
- Ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees (section 2)
- Conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in their employment, who may be affected by their undertaking, are not exposed to risks to their health or safety (section 3)
As to what is meant by the term ‘reasonably practicable’, this involves a balancing exercise: a consideration, on the one hand, of the likelihood of the risk materialising and, on the other hand, the cost, time, effort and probable effectiveness of the measure required to meet that risk.
Essential to fulfilling these duties is the requirement under the Management of Health and Safety at Work Regulations 1999 (MHSW 1999 Regulations), for an employee to:
- Conduct a suitable and sufficient assessment of the risks to which their employees, or others working on their premises, may be exposed in the course of their employment
The purpose of the risk assessment is to allow the employer to identify and implement measures aimed at reducing risks to the lowest level reasonably practicable.
The Construction (Design and Management) Regulations 2015 (CDM Regulations 2015), Part 3, confers upon contractors (and designers) various health and safety duties, which exist throughout the construction project. For example:
- The contractor must plan, manage and monitor construction work carried out either by the contractor or by workers under the contractor’s control, to ensure that, so far as is reasonably practicable, it is carried out without risks to health and safety (Regulation 14)
- The principal contractor should consult with workers on how to approach any issues arising (Regulation 14)
- The principal contractor must also provide each worker under their control with appropriate supervision, instructions and information so that construction work can be carried out, so far as is reasonably practicable, without risks to health and safety (Regulation 15)
- The information to be provided by the Principal Contractor must include information identified by the risk assessment under the MHSW 1999 Regulations, mentioned above
- Throughout the project the principal contractor must ensure that the construction phase plan is appropriately reviewed, updated and revised from time to time so that it continues to be sufficient to ensure that construction work is carried out, so far as is reasonably practicable, without risks to health or safety (Regulation 12)
A failure to comply with these duties can result in civil and criminal enforcement action being taken, including the personal prosecution of those in control of a business including a director, manager, secretary or other similar officer of a company (section 37 of the 1974 Act).
Employers’ common law duties
Employers have a duty to of care to avoid acts and omissions which can foreseeably result in injury to their employee or anybody that may be affected by their business. Health and safety legislation and regulations are relevant in the consideration of this duty. A failure to comply with this duty can result in a civil action for damages.
The Scottish Government’s guidance
The Scottish Government’s guidance (the Guidance) advises all business premises, sites and attractions to close now unless:
- Essential to the health and welfare of the country during this crisis; or
- Supporting (or being repurposed to support) essential services; or
- Capable of working in a way which is fully consistent with established social distancing advice; or
- Wider public health, health and safety or other considerations apply and require a facility or service to continue to operate for a specific period of time for a safe shutdown process to be completed
While this is guidance only and it uses the word “advises”, it states:
Everyone is instructed to comply with the rules issued by the Scottish and UK Governments in relation to coronavirus, in order to protect both themselves and others.
Relevant enforcement powers for these measures will be extended to Scotland by Ministerial Direction once the Coronavirus Bill is in force”.
With regard to the construction sector, the Guidance states:
“Non-essential business sectors – like construction (unless it is essential construction, such as a hospital) – should close unless and until we can all be clear how operations can be undertaken safely. We will work with the sector - and others - to consider if it is possible to produce appropriate guidance on that specific point. Unless and until such guidance is issued, non-essential construction sites should stay closed.”
The impact of the Coronavirus Act 2020 and the Health Protection (Coronavirus) (Restrictions) (Scotland) (Regulations) 2020
As stated in the Guidance, the newly enacted Coronavirus Act 2020 gives Scottish Ministers the powers to direct the closure of premises in Scotland or impose restrictions on persons entering or remaining in them. Using the powers conferred on them under this Act, the Scottish Ministers made the Health Protection (Coronavirus) (Restrictions) (Scotland) (Regulations) 2020 (the 2020 Regulations).
The 2020 Regulations require the closure of businesses selling food or drink for consumption on the premises, and businesses listed in Part 2 of schedule 1, to protect against the risks to public health arising from coronavirus. The closure lasts until a direction is given by the Scottish Ministers or the expiry of these Regulations and includes various enforcement powers (civil and criminal) to ensure that they are complied with.
Interestingly, and arguably contrary to the Guidance, the Regulations do not require constructions sites and businesses to close.
Frequently asked questions by employers within the construction sector
Can we continue to operate?
For employers who are undertaking essential construction work, the answer is ‘yes’, as this is consistent with the Guidance and Regulations - although it is important (amongst other things) to take the steps that we highlight below.
As to what constitutes essential construction work, it is not clear if the Guidance permits construction work – for example, such as work required to make a property within which people are residing wind and water tight - to be essential. There appears to be a number of construction projects that it can be argued fall into this category.
For employers who are undertaking non-essential construction work, while the Guidance states it is advisory, it’s clear that it sets out the Scottish Government’s expectations as to what employers should do to act responsibly, but also to ensure the health and safety of their employees and persons that will be affected by their business.
It is therefore reasonable to conclude that employers who do not adhere to the Guidance open themselves up to the risk, should one or more of their employees contract the Coronavirus, or somebody that they do not employ is exposed it as a result of them continuing to operate, to civil and criminal enforcement action and a civil action for damages. This is because the position set out in the Guidance may inform the Health and Safety Executive’s (HSE) and the Crown’s consideration of what employers should have done in order to comply with their duties under legislation, such as sections 2 and 3 of the 1974 Act. Similarly, those who are injured, or the families of people who die, are likely to found on the Guidance in civil actions for damages.
That said - leaving aside the reputational risk to an employer of continuing to carry out non-essential construction work at present – the Guidance does not create a statutory obligation to cease this work and the only legislation which has been issued does not prevent construction work from continuing. Additionally, the UK government has not - in terms of the guidance that it has issued - required construction work to cease. It may therefore be difficult for the HSE to take a different approach to enforcement in England and Scotland in relation to UK legislation, such as the 1974 Act, especially since its own guidance does not go as far to demand that construction work ceases.
Some employers may therefore decide to continue to undertake this work as they consider that they can do so in a manner which is consistent with their health and safety / common law duties and is fully consistent with established social distancing advice. In this regard, the Guidance seems to envisage the possibility that some non-essential construction work will be allowed to continue at a later date; although not until further guidance has been issued that addresses this.
The position is likely to develop and needs to be clarified. Employers who are understandably unwilling not to comply with the Guidance, may wish to give consideration to how they could work in a manner that is consistent with the social distancing advice. This would put them in a position to do so without delay if the Scottish Government issues further guidance that relaxes its advice to the construction sector.
I’ve decided to continue to operate, what do I need to do from a health and safety perspective?
This depends to an extent on the employer’s role in relation to the construction project. Generally though, employers who decide to continue to operate should consider how they can, so far as is reasonably practicable, prevent their employees, and anybody that they may come into contact with, from being exposed to the Coronavirus.
In order to do this, employers should carry out a suitable and sufficient risk assessment of this risk, which ought to include consideration of:
- If any of their employees, or people that they have come into contact with, have been confirmed as having the Coronavirus or its symptoms
- The risk that the Coronavirus poses to their employees who are in a high risk category in relation to the virus e.g. they have pre-existing health conditions, are over 60, or are pregnant
- What measures can be put in place to prevent their employees, and anybody they come into contact with, from being exposed to the virus, such as physical and social distancing (e.g. maintaining a distance of at least two metres from other staff)
- What additional infection control measures can be put in place (e.g. augmenting current hand and respiratory hygiene and protective equipment procedures, the prompt reporting of personal concerns and contingency plans in case of enforced withdrawal from work situation and self-isolation with return to work only when free from risk
Employers should also have regard to their duties under the CDM Regulations 2015 (discussed above under the statutory duties heading), and in particular, if they are the principal contractor, so that they comply with the duty in Regulation 12.
In this context, an important consideration for employers on larger construction sites is the extent to which other contractors’ behaviour may pose a risk to their employees. This ought to be considered as part of their risk assessment and ought to include the measures that need to be put in place to ensure that other contractors do not put their employees at risk. It is also essential for the appropriate checks to be made to ensure that any agreed measures are being adhered to and that a failure to do so is taken seriously, and if necessary, disciplinary action is taken.
My sub-contractor is refusing to work, can I insist that they do so?
This is not necessarily a straightforward answer and depends on matters such as whether the work can properly be characterised as “essential”, the risk of somebody involved in the project catching the Coronavirus, who they may come into contact with, as well as the terms of the relevant contract in relation to the work. In this regard, please also see our insight article on force majeure clauses in contracts.
It will, however, in general be very difficult to insist on a sub-contractor continuing with the work for non-essential construction work, especially if they state that they are unable to do so based on their assessment of the risk to their employees. It is difficult to envisage any court or arbitrator holding that this amounted to a breach of contract.
Similarly, for essential construction work, a sub-contractor is likley to be able to legitimately argue that they do not require to continue with the work until they are satisfied fully that a suitable and sufficient risk assessment has been taken of the risks arising from the Coronavirus (including those pertaining to individual employees) and that suitable and sufficient measures have been put in place to manage that risk. This argument becomes potentially unassailable for any employees that fall within one of the identified vulnerable groups in relation to the Coronavirus.
I’m a sub-contractor on a project and the main contractor says that we need to continue to work, do we have to?
This is of course the reverse of the preceding question and the points made above are relevant to whether the main contractor can insist on the sub-contractor continuing to work. We have, however, included the question as it is important to emphasise the importance of sub-contractors fulfilling their health and safety duties. In particular, they should be satisfied that if they decide to continue to work that a suitable and sufficient risk assessment has been carried out in relation to the risk that the Coronavirus poses to their employees, including their individual circumstances. Sub-contractors cannot rely on the main contractor to manage these risks in order to discharge their health and safety duties discussed above.
We’re here to help
The Coronavirus pandemic has created a great deal of uncertainty for employers in the construction sector. Contact us for further information or for a free 30 minute discussion with Jonathan Guy or Alistair Dean.
Other measures applicable elsewhere in the UK
In this article we have focused on measures applicable in Scotland to Scottish based businesses and premises. Although often broadly comparable, there are separate business support measures applicable in other parts of the UK. If you would like information on measures which may affect your business or its premises or operations outside Scotland, please contact Neil Amner.