Angela Grahame QC

Businesses are already struggling to comply with their legal obligations and with guidance changing almost daily it is no wonder they are left with their heads spinning when it comes to compliance.

Murdo MacLeod QC

What is not in doubt is that construction companies cannot afford to ignore the long-term legal implications of COVID-19 from the point of view of the health and safety of their workers, not only in terms of potential claims for personal injury and possible fatal claims, but also potential criminal prosecutions for regulatory failures.

In Scotland, Nicola Sturgeon asked “… all companies in the construction sector… to be responsible and prioritise the health of your workforce”. Whilst the construction industry was not listed as a restricted business in terms of the relevant regulations, the Scottish government issued guidance that went further.

As a result, all non-essential sites were advised to close, apart from in exceptional circumstances where they were critical to lives and safety and capable of working in a way that was fully consistent with social distancing advice. Critical National Infrastructure (CNI) sectors were defined as those facilities, systems, sites and networks necessary for the functioning of the country and the delivery of the essential services. Where those sectors are continuing, the Regulations now require them to “take all reasonable measures to ensure that a distance of two metres is maintained”.

There are 13 designated CNI sectors including: energy, communications, transport, water and waste. The guidance could hardly be more clear:

“The construction sector and its supply chain is considered a non-essential business sector, except where supporting an essential sector as listed above.”

The position in England is different. Albeit the regulatory framework is virtually identical, the guidelines simply state that “construction can continue if done in accordance with the social distancing guidelines, wherever possible.” Further, the guidance transferred responsibility on to individual managers and put supervisors in an invidious position, effectively having to choose between prioritising the safety of workers and the timely fulfilment of contracts. Such guidance as there is in England has also been criticised for being contradictory and failing to reflect the realities on site.

There can be little doubt that the Scottish government has taken a more coherent and significantly more robust approach, to the extent that its strategy has been welcomed by the Civil Engineering Contractors Association and the Scottish Building Federation.

Regardless of the guidance issued, it is also clear that all existing legal provisions to protect workers remain in force. Businesses must still comply with the overarching Health & Safety at Work Act 1974 as well as associated regulations, such as the Construction (Design and Management) Regulations 2015 and the Management of Health & Safety at Work Regulations 1999.

The question which will be asked of all construction companies is: what control measures did you put in place to protect your workers? In response, is it enough simply to rely on generic guidance? The “bottom line” is that guidelines are not law and relying on compliance with them alone to defend a civil claim or an alleged regulatory breach is fraught with risk.

Companies whose employees suffer harm, or even die, as a result of the virus, might find that they face prosecution or claims by workers and their families; yet another burden to companies already struggling to cope with the economic implications of the lockdown. Much will depend on the attitude of the Health and Safety Executive. It has said that its “regulatory approach will take a flexible and proportionate account of the risks and challenges arising from the pandemic.” While this is a laudable sentiment, it remains to be seen how far that flexibility will extend in the months ahead.

In the meantime, it is imperative that urgent consideration is given to the provision of new risk assessments, appropriate personal protective equipment, and coherent rules regarding the more obvious issues, such as distancing and cleaning. Given the rapidly changing landscape, it would also be prudent to retain all documents and guidance produced in response to each new regulation or guideline. Experience shows that a detailed audit trail of compliance can provide a ready answer to HSE queries and, if required, powerful evidence in a litigation setting.

If in any doubt, taking bespoke legal advice is a simple and inexpensive way to protect a company’s position.

Angela Grahame QC and Murdo MacLeod QC are advocates with an interest in the impact of COVID-19 on the construction industry.