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Reopening non-essential construction sites in Scotland

There are reports this week that some housebuilders in England are in the process of reopening construction sites.

Are we going to see that happen in Scotland too?

Different approach in Scotland and England

The construction industry has seen a divergence of approach north and south of the border. In Scotland, Scottish Government advice is now clear that all construction sites should close unless they are linked to specified essential services. Even if they do fall within the latter category, they must then comply with social distancing requirements.

In England on the other hand, there has not been such direct advice.

It appears that construction sites are being encouraged to remain open, subject to being able to comply with social distancing requirements.

The latest manifestation of guidance issued by the Construction Leadership Council is now in its third revision.

Can I keep my Scottish construction site open?

If it is possible to issue guidance on how to operate safely on construction sites in England, surely that should also be the case in Scotland? And if that’s the case, can a site then remain open (or reopen) even if it is not related to an essential service?

The short answer would appear to be, possibly, yes.

The advice by Scottish Government to close all sites bar those linked to essential services is just that. Advice.

It is possible to ignore advice when it does not have the force of law.

Unlike the case with restaurants and bars where the instruction to close has been the subject of legislation making it obligatory, the Scottish Government is effectively relying on the goodwill of contractors and employers to follow their guidance rather than imposing that instruction upon them.

With the news this week of various English sites reopening, one wonders just how long that goodwill is going to last.

Clarification of guidance

In one of the more recent guidance notes issued by the Scottish Government to business generally, one senses a slight softening of approach.

It has clarified that work taking place in people’s homes, for example, by tradespeople carrying out repairs and maintenance, can continue, provided that the tradesperson is well and is not showing coronavirus symptoms and neither they nor any of their household are self-isolating.

They have also indicated that some people who work on their own such as gardeners, window cleaners, or those working in rural areas where there is no personal contact, may also be able to continue if they can do so safely.

Requirement for social distancing

For any site to reopen or remain open however there is one obligatory requirement which does have the force of law in Scotland: the requirement to meet social distancing requirements.

Police have now been given the power to enforce that obligation, be it on a construction site or office building.

Premises found in breach may be subject to prohibition notices and fines; repeat offenders may be forced to close down altogether.

Advice to business

If you are able to operate your site subject to compliance with social distancing rules, there is nothing at the current time to prevent you from doing so, even if your site does not relate to an essential service.

Whether you are able to follow social distancing rules is another question. If you can’t or don’t, you are at risk of fine or even compulsory shutdown.

The absence of legal force to the guidance to shutdown may leave open the potential for arguments later down the line about who is responsible for the delay and cost of doing so.

In pragmatic terms, if you are a Scottish employer or contractor, it is likely that the decision to shut down a construction site has been reached with the consent of all.

That should avoid at least, the scope for one party to say the other is in breach of contract.

If that is not the case, or if one of the parties to your building contract starts to push for sites to reopen, you will need to be satisfied that systems are in place to keep staff safe.

Seek advice if you are in any doubt.

If more non-essential sites reopen in Scotland, it will be interesting to see whether the Scottish Government enforces its guidance by making it the law that these sites shut, or whether they focus instead on the English approach of achieving a safe system of working to remain open.

Watch this space for an update.

Karen Cameron

Senior associate Karen is an experienced litigator and solicitor advocate who regularly appears in the courts throughout Scotland. She specialises in commercial disputes, giving advice and support to those involved in the construction and property sector, in particular.

Posted, 28 April 2020 by Karen Cameron
Categories: Construction | Coronavirus | Coronavirus and construction | Insights