Site closure: to close or not to close, is there an answer?

The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“Regulations”) came into force on 27 March 2020. These Regulations, issued under the Coronavirus Act 2020, do not expressly mention building sites but they do have an impact on building sites. It’s just not as clear as had been hoped.

By way of background, my colleague Kirstin Beattie in her recent blog highlighted the difference in opinion between the UK Government and Holyrood as to whether construction sites should close. The First Minister had advised that building sites should close unless these works were essential eg. hospitals. This was before the Regulations were issued.

What do the Regulations say?

Schedule 1 to the Regulations sets out a list of businesses subject to restrictions or closure such as restaurants and cafes. This list does not include construction companies. Accordingly there is no direct prohibition on continuing to keep a construction site open. However, the Regulations do place certain restrictions on the way in which “homeware, building supplies and hardware stores” can continue to operate. The restrictions for building suppliers are therefore likely to have an indirect impact on building sites.

The main focus of the Regulations for the public at large are the restrictions on movement and gatherings. This is what impacts on people working on construction sites. In short, people should not be leaving their houses unless they have a defence under regulation 8(4). This defence requires to be a reasonable excuse as set out in regulation 8(5) such as the all now too familiar daily exercise or obtaining basic necessities.

The key defence for the construction industry workers going to site is “to travel for the purposes of work…where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living.”

What does this mean for the industry?

The Scottish Government has clearly taken the decision not to expressly require sites to close. Construction sites are not currently subject to any requirement or order to close. But, and this is a big but, any site that is considering staying open should ensure they follow existing public health guidance in relation to preventing the spread of the virus as well as complying with any other relevant health and safety legislation. That means assessing the risks associated with the virus and implementing any necessary measures to ensure safe operation of any site. As a bare minimum that will include considering the extent to which the work on site is essential, social distancing and enhanced hygiene.

The general duty on all employers, contained in the Health and Safety at Work Act 1974 is to take all reasonably practicable steps to ensure the health, safety and welfare of all employees and safety of those who may be affected by their work activities. Any risk assessment should include their supply chain and will inform any decision as to whether the site should be open or not.

The ability to comply with the guidance will depend on the site specific requirements of each individual project. Employers and contractors will no doubt also factor into a decision about site closure, issues such as the financial impact of continuing to operate a site in a restricted manner; practical issues such as the number of personnel on site and the supply of materials; health and safety obligations; and reputational management. This may explain why some companies have taken the decision to close sites.

Building supply companies can open but subject to certain restrictions. They must use all reasonable measures to ensure that:

1. a distance of two metres is maintained between any persons on the premises;
2. they only admit people to their premises in sufficiently small numbers to make it possible to maintain that distance; and
3. a distance of two metres is maintained between any persons waiting to enter its premises.

These provisions are mandatory and therefore, if they cannot be complied with, then the building supply company cannot open.

What next?

The Scottish Ministers are required to review the restrictions and requirements set out in these Regulations at least once every 21 days so it is possible that this position will change. It goes without saying that contractors should ensure that their sites are adequately protected and that any buildings are wind and weathertight in case the decision is taken to force site lockdowns.

The Scottish Government has also advised that it is meeting on Wednesday 1 April to consider new Scottish emergency powers. So watch this space.