A significant question is therefore, naturally, being asked: ‘Who will be responsible for implementing and maintaining social distancing on site?’ With the threat of COVID-19, is this like any other health and safety issue?
A matter of health and safety?
The Government has said that all employers must carry out a COVID-19 risk assessment when welcoming workers back – and that applies to construction sites just as it does to offices, shops, and other places of work. And in any event, main contractors and employers alike have a continuing legal responsibility to protect workers and others from any matter which may risk their health and safety in the line of work.
There are three main obligations:
1. a duty to protect the health, as well as safety, of their employees
2. a duty to protect others who may be exposed to health risks, including members of the public, service users and contractors; and
3. a duty to manage the health and safety risks from workplaces under the employer’s control, which includes the means of access to the workplace and any plant.
The Health and Safety Executive (HSE), the government agency responsible for enforcing health and safety legislation in Great Britain, has intimated that it will be investigating COVID-19 related matters like any other workplace health and safety issue. That includes spot-checks to ensure social distancing measures are being implemented.
Who is responsible?
Those with responsibility for implementing social distancing on site will vary depending on the size, scale and contract in place for the works.
The Construction (Design and Management) Regulations 2015 (CDM 2015) regulate health and safety in all construction works and set out the parties with responsibility for implementing them. By default CDM 2015 places primary responsibility with ‘The Clients’, and then with the designers and contractors they appoint.
Designers are expected to “eliminate, reduce or control foreseeable risks that may arise during construction”. In reality, apart from new jobs, designers will have a limited role in ongoing site-operations, as that will pass over to the contractor.
If there are several contractors, the client’s duty is to appoint a ‘principal contractor’ whose duties include planning, managing and monitoring construction work under their control so that woks are carried out without risks to health and safety, as far as practicable (there is ultimately no such thing as a risk-free environment, much less a risk-free construction site).
The main contractor will be responsible for tradesmen on site, and any direct employees. Sub-contractors will be responsible for anyone employed or instructed on a self-employed basis on site in the normal way, and they will usually be required under their sub-contracts to comply with reasonable health and safety procedures and directions from the main contractor.
Ultimately, everyone has a duty to reduce workplace risk to the lowest reasonably practicable level by taking all viable preventative measures, even workers. That is no less the case with COVID-19 than it is with any other risk – although of course attention is particularly drawn to the health risks associated with the virus spread.
This article is from the July 2020 issue of Cornerstone, our monthly newsletter for those working in the construction industry. To download the latest issue, please visit the newsletter section of our website. For further information please contact Alex Hyams or another member of Birketts' Construction Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2020.