Coronavirus: construction worker distancing review call in Scotland

The Scottish government amended the legislation on 21 April 2020 to give police the power to fine businesses that are continuing to operate if they are not taking all reasonable measures to ensure that workers are at least two metres apart from each other at all times.

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

What the law says

The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 came into force on 26 March 2020 as a result of powers conferred by Schedule 19 of the UK government's Coronavirus Act 2020.

They were introduced to ensure a "proportionate" public health response to the coronavirus in Scotland, through enhanced enforcement powers for police to ensure individuals are complying with social distancing measures.

The Regulations require certain businesses to close during the coronavirus outbreak, and these are listed in a Schedule to the Regulations. The Scottish government could have included construction sites within the list of premises which must close. It has not done so.

For those businesses that can remain open, the Regulations require that all reasonable measures must be taken to ensure that:

• workers are at least two metres apart;
• only sufficiently small numbers of people are admitted to premises to make it possible to maintain that distance, and;
• a distance of two metres is maintained between any person waiting to enter premises.

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 carried out on 16 April 2020. The ministers concluded that the regulations must be retained, but also amended them to strengthen their operation and formalise the two metre social distancing rule for all businesses which remain open.

Industry-specific government guidance

While the law does not require construction sites to close, the Scottish government has produced guidance specifically for the construction sector to be taken into account by businesses in the sector in relation to whether to continue operating a site. This has created a degree of legal uncertainly for the construction industry.

In short the guidance advises that all "non-essential" businesses should close – construction is considered to be non-essential – unless they are supporting an essential sector, which is defined as any critical national infrastructure (CNI) sector. There are 13 designated CNI sectors outlined in the guidance. They are:

• energy;
• communications – telecommunications, public broadcast, postal services, internet;
• government;
• transport;
• finance;
• civil nuclear;
• defence;
• chemicals;
• space;
• health;
• food;
• water and waste;
• emergency services.

The guidance then provides that even where construction businesses have reached the view that their sites, or parts of their sites, should remain open – examples are provided in the guidance to help with this assessment – they still need to consider the two following fundamental questions and work on a precautionary basis at all times:

• is what you do essential or material to the effort against the virus or to the wellbeing of society?
• are you able to demonstrate and give confidence to your workforce that you can consistently practice safe social distancing and comply with all other standard health and safety requirements?

If the answer to either of the above questions is no, the advice of the chief medical officer on a precautionary basis is to close.

Additional government guidance with more to come?

Further guidance was issued by the Scottish government alongside the amended Regulations on 21 April. This guidance specifically refers to the construction sector.

It states: "The chief medical officer for Scotland has advised that all non-essential business sectors – like construction (unless it is essential construction, such as a hospital)  – 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 – and others – 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. It does, however, seem to indicate that the Scottish government is now considering whether to allow non-essential construction work to continue if they can work with industry to produce guidance. Trade body Construction Scotland produced guidance for the industry on 6 April on practical issues for essential sites and this may be relevant to future developments.

The next legislative review

The Scottish government is due to review the Regulations again on 7 May and have outlined the principles that will guide the exit from lockdown restrictions in due course. As a result, businesses still operating – and those keen to reopen – should now consider how to implement physical distancing measures effectively to avoid fines or the potential for reputational damage. This is particularly true in an ever changing workplace such as construction sites, where multiple tasks are often being undertaken by different organisations at the same time.

Katherine Metcalfe and Jon Cowlan are health and safety law experts, and Mark Ferguson and Scott Wright public policy experts, at Pinsent Masons, the law firm behind Out-Law.