This clause seems potentially all encompassing to any event that causes an increase in any cost due to the fault of the Employer. I know a fault in the design is covered by PI insurance but I am questioning the first part that merely references a “fault of the employer”.
If for example an employer provides IT data for work that is corrupt, calls a training event that requires all contractor senior management to attend which results in loss of productivity and cost penalties, etc.
None of the guidance notes and commentary published on this clause gives any clarity and this seems very wide scoping. Should the events that the Employer is at fault only be those listed under clause 60.1 compensation events?
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Clause 80.1 does not mention insurance, so it would refer to any event.
Clause 60.1 states “The following are compensation events.
(14) An event which is an Employer’s risk stated in this contract”
So while clause 14 does not cross-reference to clause 80.1 - as NEC does not cross reference as a matter of policy - it signposts you to it by the use of words. Consequently, an Employer’s risk under 80.1 is a compensation event.
Personally, when I read clause 80.1 first main bullet point, the first sub-bullet is not in the control of the Contractor and more due to the influence - not necessarily control - of the Employer in commissioning the works and managing stakeholders, while the second and third sub-bullets are in the control of the Employer, so it is reasonable that they are Employer risks.