Construction Site Closure Guidance … and the law

The Scottish Government published formal guidance relating to the Construction Sector on 6 April (https://www.gov.scot/publications/coronavirus-covid-19-construction-sector-guidance/pages/related-guidance/). That formal guidance is nuanced in terms of what construction operations must shut down but the overall message remains that all but essential works must cease for the time being. What does that Guidance mean in terms of legal obligations though?

The Construction Sector Guidance

The Scottish Government Guidance is essentially that the decision to close construction sites should turn on the answers to the following two questions:

• Is the project essential or material to the effort against the virus or to the wellbeing of society?

• Are you able to demonstrate and give confidence to your workforce that you can consistently practice safe social distancing and comply with ALL other standard health and safety requirements?

Unless a construction project relates to the provision of critical national infrastructure or is related to health care in some way then it will not clear the hurdle set by the first question. Indeed, the Guidance is very prescriptive in that regard.

Moreover, even if a project is related to critical national infrastructure, if it is not time critical then it may still not get over that first hurdle.

The second question may even pose a problem for “essential” projects where safe methods of working are not possible. If health and safety requirements cannot be complied with (regardless of the nature of the project) the project should not take place until such time as compliance is possible.

To ensure compliance with the guidance, therefore, closure of all but “essential” sites would appear to be unavoidable.

There has been some recent discussion on social media as to whether or not the guidance has the force of law. That discussion, however, misses the point. The guidance provides guidance to the Construction Sector as to how it can play its role in the fight to overcome the current public health crisis.

If you are not complying with the guidance, then you may end up having a PR headache in terms of trying to justify why you are not doing your bit to “Protect the NHS and save lives”.

PR headache’s aside, there is a legal aspect to this.

The Legal Obligations

First, the changes to the Health Protection Regulations (Coronavirus) (Restrictions) Scotland Regulations 2020 that came in to force on 21 April 2020 to the effect that all businesses are under a duty to ensure 2 metre distancing between people need to be considered. [For a summary of the key provisions of those Regulations see our bulletin here]

Initial ground works / site strips (where operatives are sitting alone in machines) could conceivably be carried out in compliance with those Regulations. The impact upon later trades where personnel would be working in enclosed spaces is, however, likely to be significant. Even activities like the hanging of doors may be impossible to perform in compliance with the new regulations.

Practically speaking, therefore, many construction sites may simply be incapable of operating legally (under the revised Health Protection Regulations) and so, logically, it may make sense for them to be closed.

In addition, (although of less obviously direct application) the Construction (Design and Management) Regulations 2015 (“the CDM Regs”) need to be considered.

Regulation 4 of the CDM Regs puts an obligation upon Clients to make suitable arrangements for managing projects including the allocation of sufficient time and other resources. It goes on to say that arrangements are suitable if they ensure that the construction work can be carried out, so far as is reasonably practicable, without risks to the health of any person affected by the project.

For Contractors, Regulation 15 states that they must plan, manage and monitor construction work carried out to ensure that, so far as is reasonably practicable, it is carried out without risks to health.

Both Clients and Contractors, therefore, need to think very carefully about whether construction operations can be carried out without risks to health. Crucially, given the reference to the term “any person affected by the project” within CDM Regs, consideration of risks to health go beyond just the risks to health of those working on site. The bigger public health picture (including the Scottish Government construction guidance) does, therefore, need to be considered.

In formulating a policy position on that issue, there are two key phrases to draw from the highlighted regulations:

a) The reference to “the allocation of sufficient time” in regulation 4; and
b) The references in both regulations 4 and 15 to “so far as is reasonably practicable”.

The “so far as is reasonably practicable” phrase means that Clients and Contractors are not under an absolute obligation to prevent harm befalling any person. So, for example, if an activity is inherently dangerous and no level of safety precautions, PPE or clever design can ever completely remove risk then so be it.

But consider this: Clients also need to allow sufficient time. If allowing time is something that means an activity is no longer inherently dangerous then allowing time is something they need to do if to do so is reasonably practicable.

It is also worth noting that the Health & Safety Executive have recently advised that if an employee contracts COVID-19 and there is reasonable evidence that they were exposed to the disease because of their work then a RIDDOR report should be submitted. Taking steps to avoid ever having to do a RIDDOR report would therefore be prudent.

The Legal Practicalities

The bottom line is, having personnel on a construction site (which, undoubtedly, will involve them touching the same surfaces, if not also being in close proximity to each other) will increase the risk of infection (and therefore create a risk to health).

If that risk can be managed by giving the contractor more time to complete (thereby giving the Contractor the time to initially temporarily shut the site down and then, at some point, recommence works using adjusted methods of working), and allowing time is reasonably practicable in the circumstances, then the Client should do just that as a matter of legal compliance with the CDM Regs.

Allowing additional time may not be reasonably practicable in the context of the essential projects referred to in the Scottish Government Guidance – and that is presumably why the guidance allows for such essential projects to carry on at the moment.

As with all issues under the CDM Regs, the chances are the application of the Regs to any given site will only ever be analysed with the benefit of hindsight after something has gone wrong (e.g. a spike in infections amongst personnel working on a particular site). It is, therefore, not beyond the realms of possibility that a Client or Contractor that allows works to continue on site, unless there is a truly critical reason for them to do so, may well end up being prosecuted under the CDM Regs.

So, although the Scottish Government construction guidance is indeed only “guidance” the likelihood is that there will be legal ramifications if that guidance is not complied with.

In terms of what impact such compliance will have on contractual terms, see our further WJM COVID-19 Update bulletin on that issue.