Building firms need to obey ever-changing rules - comment

New powers provided to Police Scotland under the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 should prompt construction companies to review on-site practices and how they can implement physical distancing of workers.

There is legal uncertainty in Scotland about which sites can stay open, says Cowlan. Picture: Pixabay.

The Scottish Government amended the legislation on 21 April to give police the power to fine businesses continuing to operate if they are not taking all reasonable measures to ensure workers are at least two metres apart at all times.

There is legal uncertainty in Scotland, however, about which construction sites can stay open and which should remain closed. Recent guidance issued by the Scottish Government suggests it will work with the industry to produce further guidance that could lead to the reopening of more sites.

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The regulations were introduced to ensure a “proportionate” public health response to the coronavirus in Scotland, through enhanced enforcement powers for police to ensure people comply with social distancing measures.

The regulations require certain businesses to close during the outbreak, and these are listed in a schedule to the regulations. The Scottish Government has not included construction sites on this list.

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For firms that can remain open, the regulations require that all reasonable measures must be taken to ensure that workers are at least two metres apart, for example. Scottish ministers are legally bound to review the need for restrictions and requirements imposed by the regulations at least once every 21 days.

The first review was on 16 April. They concluded that the regulations must be retained, but also tightened them.

While the law does not require construction sites to close, the government has produced guidance specifically for the sector. This has created a degree of legal uncertainly. In short, the guidance advises that all “non-essential” businesses should close. Construction is considered non-essential – unless it is supporting an essential sector.

Key questions

The guidance then provides that even where construction businesses have reached the view that their sites should remain open, they still need to consider two fundamental questions. Firms must consider if what they do is essential or material to the effort against the virus or to the wellbeing of society – and must be able to demonstrate and give confidence to their workforce that they can consistently practice safe social distancing, and comply with all other standard health and safety requirements.

If the answer to either of those questions is no, the advice on a precautionary basis is to close. The government issued further guidance on 21 April: “The chief medical officer for Scotland has advised that all non-essential business sectors, like construction, should close unless and until we can all be clear how operations can be undertaken safely and in a way that is fully compliant with social distancing.

“We will work with the construction sector to consider if it is possible to produce appropriate guidance on that specific point. Unless and until such guidance is issued, non-essential workplaces including in particular, construction sites, should stay closed.”

While this latest guidance is more explicit in directing that non-essential construction work should not continue at present, it does not carry any legal force. The First Minister stated on 28 April that the minister for local government, housing and planning is chairing meetings of the construction leadership forum, whose work includes the development of safe site operating procedures.

This indicates the Scottish Government is considering whether to allow non-essential construction work to continue if they can work with industry to produce guidance. Firms still operating – and those keen to reopen – should consider how to implement physical distancing effectively. This is particularly true for construction sites, where tasks are often undertaken by different organisations concurrently.

Jon Cowlan, health and safety senior manager at Pinsent Masons

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