Industry insight: Should construction sites close due to coronavirus (COVID-19)?

Industry insight: Should construction sites close due to coronavirus (COVID-19)?

Sarah Schütte of Schutte Consulting Limited discusses the issues on site due to the impact of coronavirus (COVID-19) and some of the practicalities facing the construction industry.

Why are construction sites still open and should they close?

Do whatever you can to avoid the risk of coronavirus. That’s what the government led by Boris Johnson, as sagely advised by Sir Patrick Vallance (Government Chief Scientific Adviser) and Chris Whitty (Chief Medical Adviser), are saying. As of Monday 23 March, ‘stay at home’ became an order, enforceable by emergency police powers.

And yet, construction sites remain open. Why?

It comes down to the complexity, and harshness, of life in construction. Many coal-face workers are individuals on day rates. They may be British, European or from elsewhere, it doesn’t matter. For them, the risk of the virus is less important than the need to earn, to have that clutch of cash in the hand at the end of the day. Organisations 'up the chain' know this but are turning a blind eye—funders won’t release access to a facility unless progress is made (and shown, usually to their own (ie engaged by the funder) monitoring agent or similar clipboard-wielding official). Progress can’t be made and shown until the whole chain delivers—employer, contractor, sub-contractor, sub-sub-contractor, labourer. And so the problem is pushed down and down until it reaches the bottom. Where the brickie, or sparkie or chippie or welder is actually doing the work.

A programme manager that I talked to yesterday said:

How do you maintain social distance when your contract programme assumes clear access to a work face, but due to earlier delays, you are now inevitably sharing a small space with other trades?

It will take role modelling—and cash of course. This is a hard-nosed industry where margins can be miniscule. ‘Doing the right thing’ as individuals is all well and good, but it doesn’t pay the bills. This is why the government has made the promises it has, about speedy access to funds, loans, VAT holidays and statutory sick pay. But we have no clarity as to how this will actually work, and so people must continue to work to put food in the mouths of their families. That is the reality of the self-employed.

Individuals who are employees are in a more cushioned position—not failsafe though, as was experienced by my friend, a stage designer and project manager, who was made redundant two weeks ago, as the events sector started to feel the pain of cancelled summer concerts and festivals. She is hoping her employer will reverse its decision now that the government has promised to help employers to keep their employees (and—the real-life bit—to underwrite 80% of her salary up to £2,500). This sector too uses and needs competent flexible construction workers.

It beggars belief that life should feel so on the edge, and whatever the politics, this government must stand by its promises and underpin ‘UK plc’ so we can all concentrate on staying safe, taking the time to heal from the virus if we need to, protect our families old and young, and then get back to work and life when it is safely possible.

Contracts, of course, underpin all these relationships. Until very recently, contracts and sites pushed on. Clients didn’t (and some still don’t) want to close, voluntarily. Some of this reluctance relates to the availability (or lack) of insurance cover. Some of this is because projects are almost finished. They can then be easily closed for fit out later.

The niceties of contracts are for another time because right now there are Public Health England messages coming out and a few site owners have now announced that they will close. The contractual implications of this action are of course important—swirling about are risk allocation, liquidated damages, delay events, resourcing obligations, force majeure, impossibility, site suspension, and lots of other topics besides. However, very quickly, contracts are becoming second to public health. This has to be the right way forward.

Remember, the Civil Contingencies Act 2004 is there. Ministers are twitchy, and will be reluctant to use it, but the ‘go’ button is there, winking. The very idea of curtailing freedoms, with all it emotes, locking down the civil liberty of every person in the Union Kingdom, is not a place for government to lightly go. But go there we may have to. Let’s see what happens over the coming days.

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About the author:
Sarah Schütte is an independent UK-qualified solicitor-advocate and runs her own legal and training consultancy, Schutte Consulting Limited, based in London, UK, whose motto is "Making law work for the construction and engineering industry". Sarah has 19 years’ experience as a specialist infrastructure lawyer, including 12 years working directly for industry. She has developed a niche practice in project management, project controls and the law (PPM and P3M and PMO). She works with clients, contractors, professionals and supply chain delivery partners as a whole life project advisor, and supports them with training workshops and project facilitation sessions. SCL’s clients are based in the UK, USA and South East Asia, in addition to close collaborations with organisations in several other countries. Sarah speaks French, German and Spanish as well as English. 
Sarah focuses on putting law in its practical and purposive context: she equips her clients with the accurate knowledge and essential skills for confident and competent contract management, which tangibly improve delivery outcomes. Sarah is a regular conference speaker and media commentator. She writes the “Industry Insight” column for LexisPSL UK, is accredited by several industry and ADR associations, and contributes probono to industry initiatives to promote excellence in project delivery and the use of technology to control risk and facilitate governance. She collaborates closely with global Chapters of the Project Management Institute (PMI) and the UK Association of Project Managers (APM). Since 2016, Sarah has chaired the UK User Group for a USA-centred global project controls software company.
Sarah’s professional interests include ethics, behavioural science and collaboration, and how projects are influenced by individual behaviour and organisational culture. Her site boots and hard hat are always to hand.