The Government announced on 23 March that everyone in the UK is required to stay at home, except for very limited purposes: food shopping, limited exercise, medical needs and travelling to work for those who cannot work from home.
On 26 March, The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force with the following regulations relevant to the construction industry:
- Regulation 6(2)(f) provides an exception to the restrictions on leaving home to travel for the purposes of work where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living; and
- Regulation 7(b) allows for gatherings of more than two people in a public place where essential for work purposes.
The Secretary of State of Business, Energy and Industrial Affairs followed these up with a letter to the construction sector on 31 March confirming that, whilst the Government has advised that wherever possible people should work at home, for many people working in construction, their job requires them to travel to their place of work and they can continue to do so.
The Secretary also confirmed that the Construction Leadership Council's Site Operation Procedures published on 23 March ("SOP"), which have been developed to ensure that construction sites are operated safely during this pandemic, align with the latest guidance from Public Health England, including the requirement to maintain a two-metre distance from others. The SOP was updated on 2 April to advise that where social distancing could not be maintained, non-essential work should cease. However, this was withdrawn within a matter of hours following critical industry feedback.
A third version was published on 15 April incorporating updated, and slightly relaxed, guidance from Public Health England on social distancing in the workplace, such as "where it is not possible to follow social distancing guidelines in full in relation to a particular activity, you should consider whether that activity needs to continue for the site to continue to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission”.
This reflects the Government's desire to keep the construction industry working as far as is safely possible, because of the serious insolvency risks to the industry if it imposes a shutdown of all construction sites across England.
However, the application of these Governmental rules to the construction industry is not clear, and there is much inconsistency in their interpretation. Some developers and contractors are voluntarily closing sites that cannot comply with PHE's guidance, while others are keeping similar sites open where they believe they can.
Whatever decision is made regarding site closures, that decision should be made by the Principal Contractor who is responsible for health and safety at the site under the Construction (Design and Management) Regulations 2015.