Laying off project workers during the coronavirus crisis could leave contractors exposed to future contract disputes and regulatory fines. Have you considered how to protect important project data and vital information that may leave site at the same time as key personnel?
Despite valiant efforts from the construction industry to prevent disputes arising out of the pandemic, including the Construction Leadership Council’s conflict avoidance pledge, an increase in construction disputes seems inevitable. Delays and costs increases arising as a result of the effects of COVID-19 are likely to spark issues throughout the UK.
Many contractors are expected to lay off thousands of staff as the government scheme winds down in the coming months (you can read our Employment team’s recent update on the latest furlough changes here.) Dealing with claims is a lot more difficult where project staff and key personnel are no longer available as their collective knowledge is lost. Where you intend to make redundancies of key personnel, information should be carefully collated immediately so their project knowledge is captured in records rather than just committed to memory. Practical tips for recording this data include:
- Documenting everything electronically and use indexing software to make searches easier.
- Communicating with staff to understand where critical project data is stored. Have all inter-party communications been saved to your systems, including important variation instruments for example?
- Using technologies and AI available to assist with record-keeping, such as construction timesheet software to improve tracking and recording of hours worked on-site.
- Making sure the staff member’s emails and other electronic documents are fully backed up to the system and cannot be irretrievably deleted by the staff member on departure.
- Finding out where the hard copy documents for the project are being held and make sure they do not leave your business with the staff member.
- Consider taking a photographic record of the site and asking the staff member to note up manually or electronically any potentially contentious points.
- Taking a written statement from the staff member before their final day in relation to any brewing disputes and before any exit interview. Get this signed and dated in case they refuse to co-operate once left, witness summonses (subpoenas) are the last thing to want to have to call on.
- Trying to see that the staff member leaves on good terms so you can ask them questions in the future and have their co-operation – it is difficult to cover off everything especially if the departure is swift.
- Ensuring that all staff are aware of the organisational rules on handling personal data and information security, to ensure organisational compliance with applicable data privacy law.
- In general when taking the above steps, remaining aware of your obligations as a controller under the GDPR at all times.
When it comes to disputes, written and corroborative evidence is key. Contractors should keep a tight hold of their project data to protect their position with future claims. When it comes to regulatory investigations, documentary evidence of data privacy compliance measures and why those measures were taken is vital.
If this update raises questions for you about your organisational compliance with data privacy law we can help. We have expertise in helping organisations comply with their obligations under data privacy law when unfortunately faced with workforce restructuring. Given that it only takes one laid-off worker’s complaint to spark an investigation, it is important to develop a documentary compliance trail which stands up to regulatory scrutiny.
Our highly experienced construction team is on hand to provide urgent advice should you have any concerns about recording project data or are facing an unavoidable claim. Please do get in touch.