COVID-19 and construction – restarting works in Scotland

In our legal update published on 22 May 2020, “Construction in Scotland: The Latest State of Play“, we discussed the Scottish Government’s route map out of the COVID-19 crisis and how that will apply to the construction sector.

Subject to the transmission of COVID-19 remaining at the current levels, Phase 1 of the route map will begin after 28 May 2020. This phase will allow Phases 0 to 2 of the restart plan developed by the construction sector in Scotland to also begin. The re-start plan has yet to be published, but a letter from the Minister for Local Government, Housing and Planning to the Chair of Construction Scotland has given an indication of the plan which will be implemented. The letter sets out six phases for restarting the construction industry:

• 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

At the moment, only essential construction works should be taking place based on Scottish Government guidance. The restart plan seeks to phase in non-essential construction works gradually and eventually allow all construction works to continue at a steady pace.

In fulfilling Phases 0 and 1 and preparing for re-starting works, the construction sector should be considering how it can ensure the health and safety of its workers both in travelling to and while on site. The Construction Leadership Council has published ‘Site Operating Procedures’ which are widely considered to be the most comprehensive guidance for the construction sector on how to protect its workforce during COVID-19. The latest version is version 4, published on 19 May 2020.

The UK Government has also published guidance on safe working during COVID-19, but that guidance should be read alongside advice issued by devolved Governments. The Scottish Government indicates in its letter that it expects to issue updated guidance for the Scottish construction industry. The letter requests that the Scottish Government is consulted before the industry progresses to the ‘soft start’ phase (Phase 2) and this will not take place until at least 2 weeks after the updated advice is published. It is unlikely that updated guidance will be issued until after 28 May 2020 and so the soft start phase is unlikely to begin until mid-June.

By Phase 3 of the re-start plan, all construction works will be allowed as long as physical distancing is maintained. It also seems that by Phase 4, construction which cannot be carried out with physical distancing will be permitted if PPE is worn. It is expected that by this stage the demand for PPE in the health care sector will be reduced, such that supplies can be opened up to other sectors.

The Scottish Government has not indicated when the construction sector will be able to shift from phase to phase but has highlighted that this will be based on whether the industry can demonstrate compliant working practices, and wider supporting health data.