There is a lot of commentary out there on COVID-19 and its effect on construction sites and how construction contracts might respond to the unique challenges of the lockdown.
However, there is not much commentary on the effect that COVID-19 and the lockdown is having on consultants and their roles and duties under their appointments, most particularly relating to the supervision and inspection of works on site. Many consultants are obliged, as part of their role, to visit active construction sites and to carry out inspections or similar work there. Typical examples might be a monitoring surveyor, a quantity surveyor, a contract administrator or a building control inspector.
So what should consultants be doing to comply with their obligations under their appointments and to keep their staff safe?
This blog is up to date as at the date of publication, but the situation is still evolving at a rapid pace and the government is issuing updated guidance on a daily basis. Please take care to check the latest guidelines and we have provided links to enable you to do this.
This blog discusses the situation in England. Different considerations may apply in Scotland and Wales.
Can they continue to send people to carry out inspections?
Yes, generally. The Guidance for employers and businesses on coronavirus (COVID-19) (Last updated 7 April 2020) says (our emphasis added):
All employees should be encouraged to work from home unless it is impossible for them to do so. Not everyone can work from home: certain jobs require people to travel to, from and for their work – for instance to operate machinery, work in construction or manufacturing, or to deliver front line services.
There is some guidance for construction businesses on social distancing in the workplace during coronavirus (COVID-19): sector guidance: Advice for employers on social distancing during coronavirus (COVID-19) - Published 7 April 2020, updated 4 May
Construction work plays an important role in ensuring public safety and the provision of public services. It can continue if done in accordance with the social distancing guidelines wherever possible. Where it is not possible to follow the 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.
So if site inspections are required for the site to continue to operate, consultants can send people in to carry out the inspections. However, there are a few exceptions that consultants need to think about:
- Those who are shielding (people who are clinically extremely vulnerable should have received a letter telling them they are in this group or been told by their GP). The advice for such persons is that they are “strongly advised to stay at home at all times and avoid any face-to-face contact”. They therefore should not be sent to site inspections.
- Other vulnerable employees such as those who are over 70, pregnant or asthmatic, here the advice is that they should be “particularly stringent in following social distancing measures”. Special rules apply to pregnant workers in relation to health and safety assessments.
- Any employee who is caring for or living with anyone who is vulnerable or shielding – they are also advised to stay at home.
- Any employee with symptoms of coronavirus or who lives in a household where someone else is unwell - they must not leave their house for 7/14 days.
Are there any specific steps that should be taken before sending a member of staff to carry out site inspections?
All employers have a general duty to ensure the health, safety and welfare of their employees. The employer has to do all that it reasonably can to set up a system of safe work and then to ensure that it is implemented. The government guidance is good evidence of what is reasonably practicable in these circumstances (although the general law on health and safety may impose wider obligations on employers). As part of this duty, it would be prudent to consider taking the following steps.
2.1 Site Operating Procedures
It is very important to check that the contractor in control of the site is complying with the Site Operating Procedures published by the Construction Leadership Council which can be downloaded here.
The procedures are on their third version so consultants will need to check that the latest version is being followed.
2.2 Further investigations
As well as this, consultants should consider actively investigating what additional steps the contractor is taking to ensure that safe site working procedures are in place so they feel more comfortable sending their employees onto a site – examples might be
- are they monitoring government advice daily?
- how are they training staff?
- what do they have in place to help with hand hygiene (e.g. pop up stations)?
- is there regular cleaning of touchpoints such as doors and buttons?
- what are the site requirements for social distancing?
- are there signs for staff?
- what are they doing about welfare facilities such as rest areas, canteens and toilets?
- how do they ensure staff don’t come in when they are feeling unwell?
- how is access to and egress from the site being managed?
Consultants should consider producing a written questionnaire, adapted as appropriate for each site, so that the details are checked and recorded.
2.3 Adapting and changing internal inspection procedures and policies
Consultants should also look at what active steps they can take themselves to protect their staff. For example, the main government guidance for employers says:
“Where it is not possible for work to be completed at home, businesses should consider shift working or the staggering of processes which would enable staff to continue to operate both effectively and where possible at a safe distance (more than 2 metres) from one another. Staggering on-premises hours to reduce public transport use during peak periods will provide benefit to employees, businesses and the wider public effort.”
So consultants should consider if they can:
- arrange for site inspections to be done early or late in the day, when the other workers are not there.
- allow staff to travel during off peak periods on public transport or suggest other means of transport.
- use other means of carrying out inspections? Could perhaps a drone be used for some external inspection work? Might a video inspection be possible?
- extend statutory time limits for inspections in accordance with government guidance, particularly if no work, or reduced work, is being carried out on the site?
- carry out a partial inspection only, in appropriate circumstances?
- provide PPE if appropriate?
2.4 Discipline specific guidance
As noted above, the government has issued, and continues to issue, guidance for specific sectors and industries which should be monitored. Consultant, industry and trade bodies are also issuing regular updates.
For example, the government has issued guidance on the application of building regulations during this period, which can be found here.
"Building Control Bodies should continue to undertake normal, regular on-site inspection activity where this can be done safely, in line with Public Health England guidance. Building Control Bodies may wish to consider the use of alternative methods of checking compliance to supplement physical inspections, for example using digital photographs and video or other remote means of checking compliance.
Building Control Bodies should satisfy themselves within the limits of their professional skill and care that these remote inspections are used appropriately. Remote inspections should not normally be used as the sole method of assessing compliance.
Building owners may wish to occupy part of a building even if work on the rest of the building has stopped. In these cases, Building Control Bodies can issue a part final or completion certificate for that part of the building."
As part of this guidance, the government has restated its commitment to the priority remediation of high-rise buildings with unsafe cladding, and it confirms that it expects Building Control Bodies to continue supporting the progress of this remediation where appropriate.
2.5 Keep up to date and train staff
It is essential to keep up to date on the government and industry guidance that is being issued and updated on a regular basis, and also to follow that guidance.
- keep up to date with government guidance themselves;
- train and educate their site visit staff on the key parts of the Site Operating Procedures and the government guidance on hand washing and social distancing and the other specific construction sector advice;
- keep a dialogue open to check with site visiting staff that they do not feel at risk and ask them to report any issues of compliance with government advice; and
- if the site visit staff work in teams, keep the teams together, don’t mix them.
All of these steps should be recorded so that there is an audit trail to show that the consultant has considered what the risks to staff might be, considered how to mitigate those risks, and put concrete steps in place to deal with the risks.
2.5 What is next?
At the moment it looks like the coronavirus is going to be with us for some time, so once put in place, plans should be regularly reviewed in the light of the latest government and industry guidance and amended as appropriate. This will be particularly important if the government takes steps to lift the lockdown and also in the light of the reopening of larger numbers of construction sites.