Coronavirus and the construction sector: A further update (as at 24 April 2020)

In our last update, we set out the Scottish Government’s Guidance for the Scottish construction sector during the COVID-19 pandemic and explained why it differed from the approach of the UK Government.

This week, the Scottish Government made an important amendment to the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the Regulations”).

The Regulations originally provided that those persons responsible for carrying on a business or providing a service (as listed in part 3 of Schedule 1 to the Regulations) require to follow the social distancing requirements in Regulation 4. The amendment to the Regulations has removed the restriction to those listed in part 3 of Schedule 1 to the Regulations. Accordingly, the important point here is that, subject to certain limited exceptions, the requirements of the Regulations now apply to all persons carrying on a business or providing a service and that would include those carrying on construction related businesses and providing construction related services (which would include works on construction sites). The amended terms of Regulation 4(1) are set out below, for ease of reference (the main amendment is shown in strikeout):

4.— (1) Subject to Regulation 3 and paragraphs (2) (4) (6) (8) and( 9), a person who is responsible for carrying on a business or providing a service listed in Part 3 of schedule 1 must, during the emergency period —

(a) take all reasonable measures to ensure that a distance of two metres is maintained between any persons on the premises (except between two members of the same household, or a carer and the person assisted by the carer),

(b) take all reasonable measures to ensure that it only admits people to its premises in sufficiently small numbers to make it possible to maintain that distance,

(c) take all reasonable measures to ensure that a distance of two metres is maintained between any person waiting to enter its premises (except between two members of the same household, or a carer and the person assisted by the carer).

In our view, this change doesn’t align the legislative framework (the Regulations) with the Scottish Government Guidance. Put shortly, the Guidance states that construction sites generally should close except where carrying out the essential work set out in the Guidance. The nature of the change to the Regulations may cause some to argue that:

  1. there is no express legal ban on non- essential construction work and that this amendment merely re-enforces that position by providing conditions under which such  work could  be carried out and
  2. if the Scottish Government had wanted to give the Guidance legal force, it could have enshrined the Guidance in legislation but has deliberately chosen not to do so.

The question for the industry is whether it can carry out work while complying with Regulation 4 of the Regulations and other legal obligations, such as those owed to employees. There are some voices in the industry north of the border asserting that can be achieved.  

It is important to note that the Regulations and their amendment may be covered in/trigger the express terms of Standard Form or bespoke contracts (e.g. some Force Majeure or changes to Statutory Requirements clauses) and may give rise to certain legal consequences as set out in those contracts (e.g. the possibility of claims for Extension of Time /additional money) depending on the terms of the particular contract.

The legal landscape is not as clear as it can or should be for the construction sector in these unprecedented times but what is clear is that, subject to certain limited exceptions, businesses and those providing services which relate to construction are obliged as a matter of law to follow the social distancing requirements of Regulation 4.

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