From law firm Eversheds: what you need to consider if your building site is impacted by the recent disturbances.
The riots/disturbances in cities across England raise a number of issues in relation to construction sites. These will include fundamental health and safety issues but it also raises important considerations in relation to any damage or delay caused to the works.<br><br>Expecting the unexpected?<br><br>Everyone intends and hopes that their construction contracts cover all eventualities that arise. However, that intention and belief sometimes only ever gets tested when something truly unexpected happens. Thankfully, such unexpected events occur comparatively rarely, but the current disturbances fall in that category. It is clear that losses may have occurred in relation to construction sites affected by the disturbances but who is responsible for (or takes the risk of) the damage.<br><br>Will insurance foot the bill?<br><br>Before liability is determined, it is quite usual for anyone suffering a loss (particularly in relation to property damage) to look to their insurance policy to recover that loss. In most cases, there will be insurance in place to cover damage to construction projects. The insurance policy, however, will need to be reviewed to establish whether riot damage is covered. The terms and conditions of the policy, including specific claims notification provisions, must be complied with to avoid insurers refusing cover. Insureds should be aware that the claims notification provisions commonly provide for immediate notification of a claim. However, even if the insurance does respond, there will still amounts that are not covered by that insurance, namely the deductible and where the insurance cover is inadequate. So where else can people look to recover the cost of damages?<br><br>Is there really a Riot Act?<br><br>Surprising as it may seem, the Riot (Damages) Act of 1886 is still on the statute books and this provides that โwhere a house, shop, or building in a police area has been injured or destroyed, or the property therein has been injured, stolen, or destroyed, by any persons riotously and tumultuously assembled together, โฆ compensationโฆ shall be paid out of the police fund of the area to any person who has sustained loss by such injury, stealing, or destructionโ. Note that this compensation will not be available for the costs associated with any delay caused by the riots. <br><br>But what constitutes a riot?<br><br>For the purposes of deciding if an offence has been committed, the Public Order Act 1986 defines riot as โwhere 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot.โ A lot turns on whether the current disturbances are declared as a riot by the police, allowing claims to be made under the Act.<br><br>How easy is it to lodge a claim?<br><br>If they are, you will have 14 days to submit your claim to the police authority.<br><br>No insurance, no Riot Act damages, no chance of recovery?<br><br>If insurance and compensation are ruled out, it becomes a case of looking at who takes responsibility between the owner and the contractor and this will turn on who takes responsibility for unexpected events. Many contracts deal with this by the use of force majeure clauses. These can be drawn up in a number of ways โ at their widest they can be any event outside the control of the parties, which is likely to capture the current riots. If this is the case, the contractorโs obligations under the contract are suspended and the contractor is not then liable for the effects of the riots, one example of which is suspension of the works while the riots are occurring. At the other end of the scale, force majeure is drafted in much narrower terms and list only those events that comprise force majeure events. These will need close inspection because riot and civil commotion is sometimes on this list but on other occasions it is specifically excluded. In those circumstances, the contractor will certainly be liable for the effects of any delay caused. Additionally, as the contractor will not be able to suspend performance of its obligations, there is a risk that it will arguably be liable for damage to the works to the extent it has not protected the works in the manner required by the contract.<br><br>So can you predict a riot? <br><br>Probably not, you should therefore make sure:<br><br> * you understand the implications of a riot<br><br> * you agree contracts that are clear what happens in the event of a riot<br><br> * your insurance covers the effects of a riot<br><br> * you act quickly if a riot occurs, both in terms of the health and safety implications<br><br> * you lodge any potential compensation claims under the Riot (Damages) Act within the 14 day claim period.
And here is the law firm’s advice on health and safety measures to protect customers and employees.
What should you do to protect your employee and customers?
Businesses will need to consider any enhanced risk, over and above usual commuting, to employees travelling to and from work and whether that can be managed or eliminated by suggesting people do not travel. There is also the further risk of injury to employees, customers and any other occupiers of a premises if a riot occurs.
The degree of risk will ultimately be determined by the local police force and part of the control measures should include a good line of communication with the police to establish if and when there is likely to be a threat. If, however, that information is not available from the police, companies will need to make an assessment of the situation based on the reliable information that is available and then act upon it. It is advisable for companies to record potential risks and the steps in place to reduce those risks as far as reasonably practicable.
The control measures should include:
* a means of communicating with employees out of hours
* identifying the people within the business who can keep abreast of local information and threats
* keeping employees, including any mobile employees, informed of the risks
* a plan to close and vacate a premises if there is a significant risk
* a plan to close and secure a premises if it is not possible to vacate.
By way of precaution it would be sensible to check that all fire safety equipment is in good working order, that trained employees are reminded of the location of the equipment and that all fire exits are easily accessible. Current security measures could also be reviewed.
Employers will need to stay vigilant and protect their employees should a threat of violence increase.
How can you ensure that your employees come to work as usual?
If it is safe to travel and there is no unrest where your business operates then employees should be encouraged to come to work as usual. However, employers should be wary of putting too much pressure on employees to attend work in areas where the police or authorities suggest trouble is anticipated. Employers owe a duty of care to their employees and potential liability may arise if employees are pressurised in to travelling to work when it dangerous for them to do so or their place of work itself exposes them to risk of injury.
What if employees do not turn up for work?
A balanced approach should be taken between encouraging employees to make reasonable effort to get in to work and making them feel they must do so in circumstances of risk or face disciplinary action.
Theoretically, employers could consider disciplinary action if an employee was able to get to work without risk but simply chose not to. However, save for in persistent or blatant cases, employers may not want to devote the time and resources to investigate the circumstances of an individual workerโs absence as a one-off in light of current events.
As for entitlement to pay, unless there is a specific clause in an employeeโs contract of employment saying that they will lose a dayโs pay if they cannot get into work for reasons beyond their personal control, or their pay is based on actual units of work undertaken, the employee would almost certainly remain entitled to receive pay during periods of absence due to periods of violent disturbance and looting. This is because employees have statutory protection against an unauthorised deduction being made from their wages: if the employer has no contractual right to deduct pay and the employee does not consent, deducting pay could potentially be subject to legal challenge.
Employers may ask employees to take a non-working day as part of their holiday entitlement, although they cannot force them to do so without giving sufficient notice unless their employment contract contains an express right for the employer to direct when holiday is taken. Employers may also ask employees to make up the lost hours on other days.
