Should CDM Clients allow their builders to continue working?

When the lockdown came in, many of the contractors stopped work, because of the requirement to keep 2m away from everybody else.

Some are now beginning to start work up again. This is understandable, as most of the labour in the industry will be part of the precariat, without huge savings to see them over many months when they cannot earn, but who would struggle to live on Universal Credit. And the construction companies will want to (be seen to) mitigate their Employer’s loss as far as possible, to help the difficult contractual re-negotiations go as smoothly as possible.

So, what is the responsibility of the Employer as the Client under the CDM Regulations? The starting point, of course, is that the Client (like all other members of the team) has a responsibility for the health and safety of the extended project team. This includes operatives on site.

We have therefore asked the Health & Safety Executive for guidance on the following questions:

  • what is the client’s responsibility under CDM if a contractor’s chooses to continue working under the current arrangements, possibly exposing their workforce to the risk of COVID-19?
  • what is meant by the Construction Leadership Council’s “Site Operating Procedure” (version 1, dated March 23 2020) statement that “Non-essential physical work that requires close contact between workers should not be carried out” i.e. examples (or parameters helping define) what might be essential work, whether work should be limited to external areas only, or whether internal working is acceptable, how 2-person / 3-person teams (plasterboarders, bricklayers etc) should work together.
  • if a Client (under the CDM Regs) considers the Lead Contractor’s mitigation of COVID-19 risks in the Construction Phase H&S Plan to be insufficient, should they instruct improvements / cessation of work, or (if they allow the Contractor to continue working) if someone dies as a result, would the Client be liable?

[NB – The CLC drafted v2 of their guidance on April 2nd, to include clarification that where it is not possible or safe for workers to distance themselves from each other by 2 metres then work should not be carried out. However, it is still out for consultation, so v1 is the currently operable version.]

I will update this blog when we have some answers.

I’d be interested in hearing from you if you have some answers to these questions.

Andrew Drury

Published: Thursday, April 9th, 2020, 3:09 pm | Posted in: Blog

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