The Mishcon Academy Digital Sessions. Conversations on the legal topics affecting businesses and individuals today.
Emily Wright, Associate
Mishcon de Reya
In this episode, how did the Covid-19 pandemic impact the construction industry? Did the general proactive approach in the UK to Health and Safety management help with business resilience? Did the Government’s response help or hinder progress? And in terms of the increasingly topical issue of mental health and wellbeing, did having a robust wellbeing culture become even more important during the pandemic?
Hello and welcome to this Mishcon Academy Digital Sessions podcast, the second in a new series of podcasts focussed on the impact of the Covid-19 pandemic on industry. I’m Emily Wright, an Associate and partner of the Health and Safety team at Mishcon de Reya and I’m joined by Helen Tapper, Immediate Past President of the construction membership organisation, Finishes and Interiors Sector (FIS) and Finance Director at Tapper Interiors.
Hi Helen.
Helen Tapper
Hi. Hi Emily.
Emily Wright, Associate
Mishcon de Reya
Can you tell us a little bit more about FIS and what you do for your supply chain members.
Helen Tapper
Yeah. Being a trade body, it’s quite unusual in the construction sector in that it has both contractor members, I mean it’s contractor led but there’s also a lot of supplier members and so FIS works to collaborate, if you like, it likes to see itself as a big collaborator within the sector and being able to call on both supplier and contractor members, means that problems within the supply chain can be better addressed.
Emily Wright, Associate
Mishcon de Reya
And thinking back to the Covid-19 pandemic, what was the impact on the construction industry?
Helen Tapper
The impact, I mean that’s a really big question. I think you had to live through it, those first six weeks when we went into lockdown at the end of March 2020 were possibly some of the worst of my life. It was like living through something that none of us ever anticipated or expected. As company directors we spent most of our lives analysing risk and trying to mitigate risk and it was something, maybe incorrectly, but something that none of us had ever analysed in enough detail. The impact, I mean, it was a very sweeping statement by the government at the time that construction must carry on. That one sentence had massive implications for the whole supply chain, not just us as contractors. I think a lot of the government contracts especially within city centres and especially London were being run by the big Tier 1 contractors and because they’re reliant on government for a lot of these contracts, they had to comply so, anybody working, all the way down the supply chain, and there would have been so many levels of contractors involved in these contracts, they didn’t have any choice but the social, moral, contractual, operational impact of that one statement, “Construction will carry on” is still having repercussions today. I know your speciality is Health and Safety so, from a Health and Safety perspective, the Construction Leadership Council, the CLC, were issuing new site procedures within those first three weeks, almost daily. How does a contractor possibly comply with new site operating procedures on the fly, like that, in a safe and efficient manner? I don’t see how you can. We, here, we’re a fit out, so we’re classed as specialist contractors, we’re fit out contractors, we don’t work on a huge amount of Tier 1 contracts so we do a lot of end user work, we’re an SME so, our customers at the time, we were working in a food manufacturing plant, we were working to fit out a new gym in Oxford, we were working within Oxford University, we were working within hospitals in both Banbury and Oxford. So, most of our end user contracts, bearing in mind that we’re industrial and commercial, they didn’t want us on site. Why would a food manufacturing plant want to invite anybody that might bring the virus in with them and yeah, they needed to carry on, they were another high risk sector at the time that were obviously, we need to eat, so that was crucial and it was actually a chicken processing plant. No. They shut the doors and said no contractors are allowed in. So, we were in the position, we were also working on several car showrooms and our customer said, “This isn’t crucial, we’re shutting.” I would say that 80% of our customers at the time, shut their sites. So, we actually did shut our doors for six weeks and I am so grateful that we did because that six weeks gave us the buffer to actually work out how, from all those things that we’ve talked about, safety, moral, legal, all of those issues that needed to be addressed, could be addressed within those six weeks and we were much more comfortable after that with sending people out to site. We have quite a large PAYE workforce. Some of those guys, I mean one guy in particular I can think of, he’s over seventy, he’s worked for us for 38 years, would you send – we didn’t know in that first six weeks, we had no idea how many people were going to die from this virus – would you send that guy, when you employ him, out to work on a construction site? No, you wouldn’t. So, look, I’m just sort of touching the surface there of the sort of issues we had to address but I feel sorry and I think that probably the biggest lasting impact for the guys that absolutely only do Tier 1 work, and there were lots of our members in the FIS that only work for Tier 1s, they take on very large contracts, often in central London, central Birmingham, central Manchester, some of them government contracts, some of them private contracts. They absolutely had no choice and that had to be a risk and I think the biggest lasting impact, thankfully, it was proven within a reasonably short space of time that there weren’t construction workers dying in massive numbers but like I said, nobody knew that, so thank goodness but I think the biggest lasting impact is that contracts were not robust enough to deal with a global pandemic and the contractual implications of some of those large jobs that might not have finished until last year, I know that by the Spring of ’21, construction contract disputes were at an all-time high and that was a direct consequence of the pandemic and being told “You will work” through a pandemic. JCT contracts were not built to cope with a global pandemic. So, the implications are massive, they’re vast.
Emily Wright, Associate
Mishcon de Reya
You mentioned then that the government approach to this was that construction must carry on. Did the government’s approach during the pandemic help or hinder progress for the industry?
Helen Tapper
I’m not quite sure. Other than the Business Secretary making that statement, I think really then they handed it over to the construction… or big organisations like Build UK and the Construction Leadership Council, the Construction Products Association were really just left to deal. I mean, to be fair, the government, their focus was elsewhere. They had… I’m not pretending that the government’s job was straightforward in that period, especially in that first six weeks, so I think it was left to the big construction bodies to deal with the implications of that one statement, “Construction will carry on.” And they did take up the baton and like I said, the Construction Leadership Council, I mean can you imagine how difficult it was to issue site operating procedures because things were changing daily, weren’t they? You will know, from a legal perspective, you were probably trying to do the same as us and anticipate what was going to happen next and actually, a lot of what we anticipated was entirely wrong so, as the evidence was coming in and as the pandemic developed, all of these procedures were having to be developed and so, I think the big construction bodies did an amazing job actually, of trying to keep us all informed but as a director, trying to be confident that you were always following the correct advice, that you were fulfilling your obligations as a director, honestly, I don’t think any of us could have put our hands on our heart and said we are 100% certain that we’re fulfilling all of our safety, legal, moral, contractual obligations at that point. I don’ think the government got too involved, I think they left construction to it, I think they recognised that they didn’t understand the nitty-gritty and I have to assume that in all the sectors that were asked to carry on, so manufacturing, food manufacturing in particular, logistics, that we were all the same, we were all fighting a battle that we weren’t entirely sure who the enemy was, if that makes sense. Hindsight is a, always, a fabulous thing, isn’t it.
Emily Wright, Associate
Mishcon de Reya
Yeah. It was a really confusing time for so many industries and you mentioned some of the big construction bodies putting out guidance and I know the FIS was really proactive about doing that as well.
Helen Tapper
Yes. Well, we’ve got, so Ian sits on the Board of Build UK and the CLC and then we have Joe Cilia, our Technical Director, sits on the Board, or did, of the CPA, the Construction Products Association. So, we covered all bases and actually, for our members it was almost a bombardment, you’d literally go on the website on the front page every day to see what, and it would be scrolling round the latest… it was a lot to process.
Emily Wright, Associate
Mishcon de Reya
Yeah. Do you think the general proactive approach in the UK to Health and Safety management helped with business resilience when it came to the pandemic?
Helen Tapper
Yes. Oh, without a doubt. The only thing I would say is that guidance from the HSE didn’t always appear at the time to agree with guidance from the CLC and if you went on the HSE website, which we obviously did often, it was quite difficult to ascertain what you could be prosecuted for in terms of exposing your workforce to the virus. I would say that that wasn’t, for me, it wasn’t a 100% clear. But yes, we were all very well aware of our obligations via the HSE.
Emily Wright, Associate
Mishcon de Reya
Does that also apply to mental health and wellbeing and did you feel that there was a robust wellbeing culture that became even more important during the pandemic?
Helen Tapper
Could you really argue that when construction workers weren’t given a choice about whether they went to work or not? I mean, I know there would have been pressure from a huge amount of the contractors that would have just carried on employ a huge LOSC workforce, so a labour only subcontractor workforce, many of whom are sole traders and they would have not have wanted to stop working. But could they, bearing in mind that I was able to furlough a lot of our workforce, the PAYEs, the LOSCs obviously were not as, they had to deal with it themselves, a lot of them were probably not entitled to very much support, financially, so they had to go to work. Did anybody think about their mental wellbeing? I would say not. When things were being done on the fly, at that pace and the pace at that point was horrendous for everybody in construction businesses, I don’t just mean people were sending out to site, I mean all of our office staff as well, the change on a daily basis was very difficult to deal with, especially for construction workers who were going into potentially, and I say now potentially because with hindsight it wasn’t deemed particularly dangerous but they were being sent into potentially dangerous scenarios and did anybody think that that might be making their mental health suffer? No, I don’t, I don’t believe we talked about that possibly enough.
Emily Wright, Associate
Mishcon de Reya
Do you think now is the time to talk about that with the Covid Inquiry?
Helen Tapper
Yes.
Emily Wright, Associate
Mishcon de Reya
And what are your hopes for what the Covid Inquiry might be able to achieve?
Helen Tapper
Once again, that’s a massive question, isn’t it? I hope that they listen to not just the big construction bodies. So, yes, obviously because it’s a very high level inquiry, government and the bodies that are overseeing the Inquiry are going to turn to the CLC, the CPA, Build UK but I really hope they talk to people on the ground as well. I really hope they talk to specialist contractors, not just to the Tier 1s because a lot of the Tier 1s, they don’t actually employ anybody, they contract out most of their work so, I really hope they speak to the contractors that are engaging either labour only subcontractors or their own workforces and find out how it affected the whole supply chain, not just the Tier 1s. Can they go into that much detail? I don’t know. It’s a huge… that Inquiry surely is, you know, we’re not just talking about construction, are we? It’s a very small, I think we’re 16% of GDP. That’s a big chunk but there is a lot of other sectors that they need to, not least hospitality, who let’s face it were possibly the hardest hit. I mean, you could argue couldn’t you that we were lucky, we didn’t have our businesses taken away from us so, do I think the Inquiry will go into that much detail? We’d like to think so, wouldn’t we but I’m not sure. And will the Inquiry be looking to learn lessons? Is that the point of the Inquiry or is it to point fingers? I don’t think it’s of any benefit is it to point fingers at people? Unless we learn from it, it’s a total waste of time.
Emily Wright, Associate
Mishcon de Reya
And if lessons are to be learned and that is what comes out of the Inquiry, what sort of answers or further support do you think would be looked for from the industry? Both in terms of from the government, from advisors and from groups such as the FIS.
Helen Tapper
I’m conflicted on this because I’m a small business owner so, I know how hard it is to run profitable small businesses and should we be a 100% prepared for another global pandemic? It’s like the snow plough in winter argument, isn’t it? When are we expecting the next global pandemic? How many times in a lifetime is that likely to happen? I don’t know if from a physical point of view, I mean certainly I think that contractually, hopefully, the contracts will now be not just for pandemics but for any sort of global catastrophe, that they will be robust enough to support people through it. I hope that we learned things about people’s mental health. I mean don’t you think that in hindsight and not right now but possibly in years to come, that will be one of the biggest lessons from the pandemic, will be how people reacted and how they came out the other end and how it’s changed things. It won’t be did we have enough PPE to cope? And I’m not, I’m not commenting on that about whether we should or shouldn’t have had but I think the physical things, maybe it’s unrealistic for a country or a sector like construction, to be a 100% prepared for a global pandemic, in physical terms. But let’s hope we learn things about people, yes, and about people’s mental health and the way people react, the lasting implications from a work perspective, how we work, how we operate our businesses.
Emily Wright, Associate
Mishcon de Reya
I think that’s a great point especially in terms of Health and Safety management where obviously, global pandemics hopefully won’t be coming along often but in terms of crisis response, managing something which is otherwise not every day and which has this huge impact on wellbeing and an industry supply chains, ability to work and so on, that kind resilience, I completely agree, is going to be really important.
And as the country and economy recover from the impact of Covid-19 what do you see for the future of this industry?
Helen Tapper
I would really like to say that because the supply chain, and they did, they rolled their sleeves up and they worked through a global pandemic and I’m just referring to construction now, I can’t comment on other sectors. I would like to say that we got some credit for that that the Tier 1 contractors have learned and have learned to treat contractors, specialist contractors in particular, with a bit more respect, that they’re a bit more forgiving in terms of contractual disputes and recognising the fact that we were, like I said, fighting a battle when we didn’t know who the enemy was, but it doesn’t appear that that’s the case. It would appear that so far, the behaviours in the supply chain have not changed at all and as we approach recession, I obviously lived through the Credit Crunch just over ten years ago, as possibly the worst recession in my lifetime but I lived through minor recessions in the ‘80s and ‘90s. I am not seeing any change in people’s behaviours going into a recession than I saw ten years ago. The construction supply chain can be a brutal place to operate and that sort of dog eat dog mentality, that race to the bottom that can incur, in my world doesn’t seem to be disappearing, so I think that’s a massive missed opportunity and it’s a great shame that so far, I’m not seeing a massive change, I’m not seeing that the supply chain has learned lessons. If I’m honest, I really wish I could give you a more positive answer on that. I think the way in which people work, I think we’re more forgiving of people within our own businesses and I’m sure the Tier 1s are the same within their own businesses but in terms of supply chain operation and the contracts themselves, contract dispute, contract litigation, all of those things are not seeing a change at all.
Emily Wright, Associate
Mishcon de Reya
Well, for now, let’s wrap up there. I’d like to say thanks so much to Helen Tapper for joining me for this Mishcon Academy Digital Sessions podcast.
Helen Tapper
Thank you.
Emily Wright, Associate
Mishcon de Reya
I’m Emily Wright and the Digital Sessions are a series of online events, videos and podcasts, all available at Mishcon.com and if you have any questions you would like answered or suggestions of what you’d like us to cover next, do let us know at digitalsessions@mishcon.com.
The Mishcon Academy Digital Sessions. To access advice for businesses that is regularly updated, please visit Mishcon.com.