Restarting work on Scottish construction sites: a legal view

Last week the Scottish government published a route map for lifting covid-19 restrictions. The restrictions have heavily impacted the construction sector in Scotland, where all non-essential sites have been closed since early April. With sites starting to reopen from 28 May, this article explains the Scottish government’s plan for construction sites, and the contractual implications.

The route map for lifting lockdown adopts a six-phase plan for reopening sites, developed by Construction Scotland. The phases are:

• Phase 0: planning
• Phase 1: covid-19 pre-start site prep
• Phase 2: “soft start” to site works (only where physical distancing can be maintained)
• Phase 3: steady state operation (only where physical distancing can be maintained)
• Phase 4: steady state operation (where physical distancing can be maintained and/or with PPE use)
• Phase 5: increasing density/productivity with experience.

The plan assumes that phase 0 (planning) work is already under way, with preparations being made for site assessments for covid-19 modifications and procedures. On 28 May, the Scottish government confirmed that sites can now move to phase 1 (site prep), which will put measures in place to ensure physical distancing and enhanced hygiene. This might include additional site welfare facilities, one-way systems and marking 2m distancing throughout the site.

Phase 2 (soft start), which allows for a phased return of part of the workforce, will only commence when H&S statutory requirements can be satisfied. This will follow a period of consultation between Construction Scotland and the Scottish government, and will not be permitted until two weeks after the Scottish government updates its coronavirus (covid-19) Construction Sector Guidance (though the two-week period is being kept under review).

Most standard form contracts recognise changes to temporary works, employer’s requirements, imposition of additional restrictions or changes to the works information as amounting to variations

Phases 3 to 5 (steady state operation – increased density) will not start until Scotland moves to the next stage in the covid-19 route map. This will depend on factors such as fully compliant working practices being put in place, and the confidence of the workforce and unions in those arrangements.

The first minister, Nicola Sturgeon, has called for a “genuine partnership” with trade unions to implement the plans, and the minister for local government, housing and planning, Kevin Stewart, has confirmed that if there is any evidence to suggest that construction activity leads to an increase in infections, the Scottish government may be forced to tighten restrictions again.

Those preparing for the reopening of sites should also be carefully considering how their contracts deal with the changes that will be necessitated by the restart plan. For example, changes to site operating procedures and working methodologies may amount to variations. Most standard form contracts recognise changes to temporary works, employer’s requirements, imposition of additional restrictions or changes to the works information as amounting to variations. As ever, the devil will be in the detail, and parties should carefully review the technical appendices to contracts to ascertain the original contractual requirements, and analyse whether the revised operating procedures introduce any changes.

Parties should carefully review the technical appendices to contracts to ascertain the original contractual requirements, and analyse whether the revised operating procedures introduce any changes

The Health Protection (Coronavirus) (Scotland) Regulations 2020 came into force on 26 March and were subsequently amended on 1 April. These regulations expressly require business owners to take reasonable measures to ensure a distance of 2m is maintained between any persons on the premises, and to only admit persons to their premises in sufficiently small numbers to maintain that distance.

This represents a marked difference from the English position, where sites have been encouraged to stay open, and been issued with “guidance” or “recommendations” to comply with social distancing SOPs published by the Construction Leadership Council. While there is a debate to be had as to whether such “guidance” from Westminster triggers change in law entitlements under contracts in England, the position seems clearer in Scotland where social distancing requirements have been codified into legislation. Most standard form contracts contain change-in-law clauses, which will generally allow contractors to recover time and cost (note that this is an optional clause in NEC). However, standard form change-in-law provisions are frequently amended, so the clauses and risk allocation must be carefully reviewed.

In practice, contractors’ entitlements to variations and/or time and cost will be fact-specific, and determined on a contract-by-contract basis. It is therefore important to check each contract carefully, and where claims are being made, to submit any notices in a timely fashion and in accordance with any contractual stipulations.

Katherine Doran is a senior associate in HFW’s construction group.