Construction Contracts: What to do if a strike affects you?

  • Legal Development 21 December 2022 21 December 2022
  • UK & Europe

  • Projects & Construction

This year has been a challenging year for many reasons. With significant hikes in inflation over recent months, the UK is seeing an increase in industrial action across numerous sectors. Given the present climate, employers and contractors alike may be wondering just how their contract would respond if a strike was to impact a party’s ability to perform its obligations. While current UK industrial action may not have a direct impact on construction projects, it is a timely reminder for parties to familiarise themselves with those contractual mechanisms that may operate in such circumstances. Considering some of the most common standard form contracts used in the construction industry, the issue of industrial action is generally dealt with in one (or both) of two ways: (i) by way of a specific entitlement via an extension of time / additional cost mechanism; or (ii) by way of a force majeure clause.

Specific entitlement

A number of standard form contracts specifically provide that where a strike / industrial action is delaying or will delay the contractor in achieving the relevant completion date, this will constitute an event entitling the contractor to an extension of time (EOT) and (in some cases) an adjustment to the relevant contract sum. 

It is usual for such entitlement to be qualified by the requirement that any strike / industrial action is not one for which the contractor or its employees are responsible.  Where this qualification is not included in a standard form, it is almost always included by employers by way of amendment.

Any mechanism allowing for an extension of time and/or additional cost will generally come with other qualifications affecting the contractor’s entitlement.  In some cases, these may amount to conditions precedent, meaning that any failure to comply will disentitle the contractor to any relief.  Parties will need to consider these mechanisms carefully to ensure they are familiar with any such requirements.

Force majeure

Force majeure provisions are intended to provide protection for parties that are unable to perform their contractual obligations due to unforeseen reasons beyond their control, for example, natural disasters or sudden outbreaks of hostilities. They generally entitle one (or both parties) to the contract to suspend their contractual obligations for the period that the relevant party is impacted by the force majeure event (subject to an obligation to mitigate such impact). If not provided for by way of specific entitlement, strikes / industrial action may well be dealt with under the applicable force majeure mechanism.    

However, the concept of force majeure is a ‘creature of contract’.  There is no doctrine of force majeure in English common law.  This means that, if your contract does not include a force majeure provision, English common law will not imply one for you.  It is, therefore, essential for parties wishing to provide relief in the event of force majeure to do so expressly and to accurately define what events are captured to ensure certainty and reduce the risk of disputes. 

Despite this, standard form contracts take a varied approach to how they define force majeure events.  Some specify a list of events, which may be exhaustive or non-exhaustive.  If exhaustive, any event not specified in the list will not amount to force majeure.  If non-exhaustive, any event not specified in the list may still amount to force majeure if it meets the other requirements of the mechanism.  Where no list is specified, the other general requirements of the clause will need to be considered to determine if a specific event may be captured.

It is often the case that force majeure, where it is made out, will constitute a specific event entitling a contractor to an EOT (but the contractor will need to get across the first hurdle of establishing force majeure before it can take advantage of this specific entitlement).

Contracts by comparison

The table below provides a high-level comparison of how JCT, NEC and FIDIC contracts address the issue of strikes / industrial action. For reasons of space, it does not provide an in-depth analysis of how each mechanism operates in the specific contract but, if you would like more information about this, please feel free to get in touch


Standard Form

EOT / Additional Cost

Force Majeure

JCT2016 (Design and Build)

The Contractor is entitled to an EOT in the case of ‘strike, lock-out or local combination of workmen affecting any trade employed upon the Works or engaged in the preparation, manufacture or transportation of any of the goods or materials required for them or any persons engaged in design for the Works’ (Cl. 2.26.11).

Note that this provision is regularly amended to include the qualification mentioned above that any strike etc is not one for which the contractor or its employees are responsible.

There is no entitlement to any additional loss and expense under JCT in such case.


JCT allows the Contractor an EOT in the case of ‘force majeure’ (Cl. 2.26.11).  It also gives both parties a termination right in the event of prolonged delay due to ‘force majeure’ (Cl.  However, the term is not otherwise defined.  This has caused issues in recent years, particularly in the context of Covid-19. Our article discusses the JCT approach to force majeure in more detail.


The Contractor is entitled to an EOT and a change to the Prices in the case of ‘an event which is a Client’s liability…’ (Cl. 60.1(14)).

A Client’s liability includes ‘Loss of or damage to the works, Plant and Materials due to…strikes…not confined to the Contractor’s employees…’ (Cl. 80.1).  Note, therefore, that physical loss or damage to the Works will be a prerequisite of this entitlement.

NEC contains a ‘prevention’ clause (which is essentially NEC’s version of a general force majeure provision) (Cl. 60.1(19)).

It does not specify a list of events but deals with the matter of force majeure in general terms. 

While a strike / industrial action may be captured by the generality of the provision, the clause expressly excludes events that would come within any other compensation event stated in the contract.  Accordingly, this prevention would not apply in the case of physical loss or damage caused by strikes / industrial action as cl. 60.1(14) specifically addresses this.


FIDIC 2017 (Yellow Book)

No express entitlement under the EOT mechanism in the case of strikes / industrial action.

The 2017 editions of FIDIC’s Red, Yellow and Silver Books allows the Contractor an EOT in the case of an Exceptional Event (Cl. 18.4(a)).

An ‘Exceptional Event’ is ‘an event or circumstances which:

  • is beyond a Party’s control;
  • the Party could not reasonably have provided against before entering the Contract;
  • having arisen, such Party could not reasonably have avoided or overcome; and
  • is not substantially attributable to the other Party’ (Cl. 18.1).

FIDIC expressly lists ‘strike or lockout not solely involving the Contractor’s Personnel and other employees of the Contractor and Subcontractors’ as an example of an Exceptional Event (provided that the above conditions are still satisfied) (Cl. 18.1(d)).

FIDIC also allows the Contractor payment of any Cost incurred where the strike / lockout occurs in the Country where the Site is located (Cl. 18.4(b)).


As can be seen by the above, there is no standard way that strikes / industrial action are dealt with in construction contracts.  If you are concerned that such an event may impact on your ability to perform your obligations, it is important to review the relevant mechanisms carefully to see where any relief may arise and what requirements must be met to achieve this.  If you would like assistance in reviewing your contract or claiming relief, please let us know.


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