In response to the public health emergency created by the COVID-19 virus, the UK Government has introduced restrictions upon the operation of specific businesses and a requirement for all employers to consider whether it is reasonably possible for its workers to work from home. Importantly however, there is no widespread restriction upon UK industry.
What is required in all cases is that where a business continues to operate, it does so safely. But what does safe in these unique times and how is it applied across the diversity of UK industry? How can we socially distance ourselves whilst carrying out day to day work tasks?
In recent weeks there has been significant focus upon the UK construction industry. Everyone familiar with this industry will realise that the concept of social distancing is not easily compatible with work on site.
Indeed, some safety Regulations may even be interpreted to conflict with these requirements. For example, how are manual handling requirements to be reduced when maintaining a 2 metre gap? Can lifting operations be safely planned and executed whilst maintaining this separation? Can first aid be administered in a timely and effective manner? These questions do not even begin to consider shared transportation, access turnstiles, work briefings, welfare facilities, workplace canteens etc. etc.
As some of those construction businesses who stopped work now look to return to work alongside those that have continued to operate, it is important that clarity is obtained on these important issues.
New Site Operating Procedures – what do they say?
Earlier this month the Construction Leadership Council published new Site Operating Procedures (SOP). This followed the publication of an earlier version that had been withdrawn from use due to serious concerns over its operation – an apparent conflict between coronavirus advice and the realities of construction work.
The guidance is intended to introduce consistent measures on construction sites of all types and sizes in line with Public Health England guidance in respect of social distancing.
Repeating PHE Guidance, the SOP states that "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”. It includes guidance, specific to the unique activities that take place on construction sites, intended to support the planning and organisation of work so to avoid crowding and minimise the risk of spread of infection.
How to apply the 2 metre rule
Importantly, the new SOP removes the widespread confusion and concern created by the previous version of the SOP where they had stated that if it was not possible or safe for workers to distance themselves from each other by 2 metres, work should not be carried out.
This has been removed and it is now possible to carry out work where workers are less than 2 metres apart.
So, how do businesses address the risks posed in these circumstances? If you are not able to maintain this then risk assess using the hierarchy of controls; eliminate, reduce, isolate, control, PPE and behaviours. Guidance is provided on each of these concepts but the position is still far from clear.
The SOP is an attempt to provide clarity and guidance to the industry in order to keep it functioning safely. At the very least the SOP removes the widespread confusion and concern created by the previous statement that work must cease where a 2m gap cannot be maintained.
Less than 2 metres – be prepared
The framework set out in the SOP is all the more important when considering the importance of the 2 metre rule. We are all now familiar with the 2-metre rule, arguably the most important feature of social distancing guidelines.
It is important however to be aware that this rule has a statutory footing in some parts of the UK. Both the National Assembly for Wales and Scottish Parliament have taken steps to formalise this requirement.
In Wales, Regulations issued in response to the pandemic require that persons responsible for work during the emergency period must take all reasonable measures to ensure that a distance of 2 metres is maintained between anyone on work premises* . Guidance issued by the Welsh Government acknowledges that it will not always be possible to ensure employees stay 2 metres away from each other, but employers need to make an assessment as to what measures can be taken to maintain physical distancing. In common with the SOP, this Guidance also concedes that the duty does not require all possible measures to be taken, only all those that are reasonable.
In Scotland, similar Regulations require that businesses which are allowed to remain open during the emergency period must take all reasonable measures to ensure that a distance of two metres is maintained between any persons on the premises**.
Importantly, both the Welsh and Scottish Regulations provide certain categories of persons with powers to take necessary actions to enforce the Regulations. Whilst there remain questions as to how far this extends in Scotland, the Welsh Regulations provide an express power for the Police/Inspectors to enter premises where there are reasonable grounds for suspecting a contravention of these requirements
Given the relatively public and exposed nature of construction sites, it is not difficult to envisage situations where Inspectors may seek to exercise these powers.
With this in mind businesses should prepare to be able to justify the measures that they have put in place. Where it is possible that individuals will move within 2 metres of one another be prepared to justify this practice. It is clear from the above that businesses must point to the reasonableness of such arrangements; the hierarchy set out in the SOP providing a helpful and accessible framework within which to do so. When convincing an Inspector of the reasonableness of any action, it always helps to have logical and industry endorsed evidence to hand.
It all comes back to Risk Assessment
There are inherent challenges to carrying out construction work in instances where the risk posed by COVID-19 will remain – either because the SOP cannot be applied to a particular project or because these do not address all of the possible risks. In those circumstances, businesses will need to undertake specific risk assessments with reference to this SOP before determining whether it is safe to continue. In this regard, although imperfect, the SOP provides a useful point of reference.
The industry therefore falls back to the familiar risk based approach to work, albeit in entirely unfamiliar circumstances.
*Regulation 6A of the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (as amended)
**Regulation 4 of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (as amended)