Coronavirus and Construction Sites

The Scottish Government has now legislated to give effect to its previously published guidance and public statements about restrictions which will apply during the Coronavirus emergency.

These affect construction works, but only in an indirect way. Our view is that, viewed in isolation, the rules mean that construction sites could in theory remain open, but in practice will require to close. Note, in a construction context, the terms of the CDM Regulations would apply (see our separate note here on what the application of those regulations to the current situation is likely to mean).

The rules are contained in the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, which are passed under the UK Government’s emergency Coronavirus Act 2020.

In relation to construction works, the following rules are the relevant ones:-

1. Regulation 5 – no person may leave the place they are living, unless they have (in terms of Regulation 8) a reasonable excuse.

2. Regulation 6 – no person may participate in a gathering of more than 2 people, except where that gathering is “essential for work purposes”.

3. Regulation 8 – the list of what constitutes a “reasonable excuse” includes the “need….to travel for the purposes of work….where it is not reasonably possible for that person to work….from the place where they are living”

The legislation specifically mentions that certain categories of business do have to close, but construction businesses are not one of the categories mentioned, and nor are construction sites listed as places which require to close.

Because of the specific wording in the Regulations, therefore, in theory a construction site where work could be carried out by individuals on their own or with one other person, or where a gathering of two or more people would be considered essential (for example during “toolbox talks”), could remain open. There seems to be universal agreement that work on construction sites cannot be carried out from home, so travel to such sites would also be permitted. The rule prohibiting gatherings of more than two people would also, in principle, allow sole traders (such as plumbers, joiners) who work in people’s homes to continue to do so, as long as they can comply with the Government’s 2 metre rule.

But, the difficulties caused by the continued need to comply with the CDM Regulations, and the “good citizen” expectations inherent in the Government’s pronouncements (including the risk, for example, of “naming and shaming”), both need to be factored in. It also has to be borne in mind that certain works, such as to make construction works safe, or wind and watertight, could be considered to be “essential”.

The position we’re left with, therefore, remains complex without any definitive answer. Businesses will continue to need to make their own assessments as to whether they can comply with the CDM Regulations, and the new Regulations, on a case-by-case basis unless and until the UK or Scottish Governments legislate more definitively.

One way of mitigating the risk of enforcement would be to ensure that all staff travelling to work have with them sufficient evidence of their employment status, as well as something to establish the necessity for their travel (eg. a purchase order), or a letter from the employer setting out the work they are required to do.

Wright, Johnston & Mackenzie LLP can help guide you through the requirements, so please do get in touch.

For any advice in relation to any particular aspects of the above, please contact Partner Steven Docherty on sd@wjm.co.uk