Derogation in legal and contractual contexts, refers to a relaxation, exception, or deviation from a standard rule, requirement, or regulation. It allows certain obligations or standards to be waived or modified in specific circumstances. Within the UK construction industry, derogations are commonly used to manage compliance with employer requirements, technical specifications, or statutory duties, particularly when strict adherence is impractical or unnecessary.
In practice, a derogation enables a party—typically a contractor, designer, or supplier—to propose an alternative approach that deviates from the original contract requirements while still delivering a satisfactory or equivalent outcome. Derogations are often used in complex projects. Where design development, site conditions, or procurement constraints make strict compliance with the original brief difficult or unfeasible.
Key Uses in Construction
Design and Specification
One of the most common uses of derogations is in design and specification. If a contractor identifies that a specified material or method is either no longer available, not compliant with current regulations, or unsuitable for the site conditions, they may request a derogation from the client or design team. The derogation would permit the contractor to use an alternative, subject to approval, while maintaining compliance with performance and safety standards.
Employer’s Requirements and Contractor’s Proposals
On design and build contracts, such as under the JCT Design and Build, the employer typically issues Employer’s Requirements (ERs). Contractors then submit Contractor’s Proposals (CPs). If the CPs cannot fully meet the ERs—for instance, due to time, cost, or technical limitations—the contractor may formally request a derogation. This allows the employer to evaluate the deviation and either approve it or reject it with justification.
Health, Safety, and Environmental Compliance
Derogations can also be sought where full compliance with a health, safety, or environmental standard is impractical, provided that an alternative measure achieves an equivalent level of protection or performance. This might occur, for example, where a particular working method poses greater risk or cost than a safer, equally effective alternative.
Temporary Measures
In some cases, derogations may be granted for temporary conditions—for example, to permit a different method of access, sequencing, or temporary design solution during construction, so long as permanent works remain compliant.
Process and Governance
A derogation must typically be:
- Requested in writing, with clear reasoning and evidence,
- Reviewed and approved by the relevant authority (e.g. client, employer’s agent, or technical advisor),
- Formally documented, often through a derogation register.
All derogations must be handled transparently and carefully. They can affect liability, warranties, or performance obligations.
In conclusion, derogations serve as a controlled mechanism to introduce necessary flexibility into construction contracts, allowing practical and compliant deviations from specified requirements without undermining the integrity of the overall project. Properly managed, they help ensure that projects remain deliverable while adapting to real-world constraints.
