Covid-19 and construction: differences between Scotland and England

United Kingdom

The 5pm daily briefings led by the UK Government reflect a UK led approach to the battle against coronavirus. The Scottish Government holds its own daily briefings at 1.30pm.  The content of the Scottish Government briefings reflects their view on protection against coronavirus and have led to the publication of a number of Scottish Government guidance papers.  These guidance papers and Ministers’ statements show a difference between the Scottish Government’s approach to construction sector and that of the UK Government.

Statements from Ministers show a clear difference in the Government’s approach

On 23rd March 2020 the First Minister stated “about building sites …[ ] my advice would be to close”  the English Communities and Housing Minister tweeted that “Advice for housing, construction & building maintenance industries: if you can work from home , do so. If you are working on site, you can continue to do so.”

The following day,  24th March 2020, the First Minister stated she “would expect construction site to be closed unless the building that is worked on is essential, such as a hospital”, and the Cabinet Office Minister stated that builders should turn up to construction sites if the sites are in the open; or if the sites are on private property and essential works needs to be done and the Health Secretary stated that when it comes to construction, work could continue if workers stood 2 metres apart from each other.

The following week, on 31st March 2020, the First Minister set out that in her view non-essential construction sites should remain closed and the Business, Energy & Industrial Secretary issued a letter that construction workers can continue to work.

Guidance from Governments affirms this difference

Although the social distancing guidance is broadly similar there is a clear distinction in the treatment of construction sites.  The Scottish guidance (published 27th March 2020) provides that “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”.  The equivalent guidance in England (published 29th March 2020) set out that in relation to certain jobs such as “work in construction” which cannot be done from home “you can still travel for work purposes, provided you are not showing coronavirus symptoms and neither you nor any of your household are self-isolating.” 

This English social distancing guidance was updated on 6th April 2020 and in relation to construction stated:  “Where it is not possible to follow the social distancing guidelines in full in relation to a particular activity, consider whether that activity needs to continue for site to operate. Where face-to-face contact is essential, keep it to 15 minutes or less wherever possible”. On the same date the Scottish Government published more construction sector guidance. This guidance advises that non-essential sites should close. Essential projects were listed and described in detail. These include works which are essential to health and welfare of the country during the crisis and support. The guidance provides details of sectors which are deemed non-essential including schools, further education and retail. In the 21st April 2020 update to the guidance on social distancing for business the Scottish Government reiterated “construction sites - should stay closed” and then addressed domestic construction which it had been not expressly dealt with until now stating that “Work carried out in people’s homes, for example by tradespeople carrying out repairs and maintenance, can continue, provided that the tradesperson is well and is not showing coronavirus symptoms and neither they nor any of their household are self-isolating.”  Social distancing requirements would also apply.

Procurement Policy Notes are very similar although some slight differences in the presentation of information.

PPN 2/2020 and its related updated published details for Supplier relief for Covid19 in public works projects. The Scottish equivalent SPPN 5/2020 includes the same information and additional clarificatory wording that  “The supplier will not be entitled to combine a claim under the contract with any other COVID-19 related relief, grant, intervention or other measure which results in the supplier receiving more than one benefit/relief for the same underlying cash-flow issue” .  The UK Policy Notice does not refer to this prohibition on double recovery but as the Template of Model Interim Payment Terms for both the UK and Scotland are identical this same position applies to both.

Legislation is largely similar but there are some differences.

The Coronavirus Act 2020 applies across the UK.  From that Act both Holyrood and Westminster have passed similar regulations, in Scotland The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 and in England The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. There is also an equivalent Welsh regulation.  In the Scottish regulations where a business, such as a supermarket or builders’ merchant is listed as a being permitted to remain open it is always under the condition that all reasonable measures are taken that a distance of 2m is maintained between any persons on the premises. Today, 21st April 2020, the Scottish Government amended those regulations to extend the mandatory distancing requirement to all businesses that remain open.  That distancing requirement is absent in the English regulations where the 2m distancing would apply under the social distancing guidance.  

Summary

The UK wide approach is reflected in the core legislation that has been passed to police the spread of cofid-19 – the Coronavirus Act 2020 - but from that point on the differences between Government positions in Scotland and England diverge with the Scottish Government setting out an increasingly firm position on site closures while in England the focus has been on distancing and safe site working practices.  These differences have made decision making more complicated for those Contractors and Employers with a UK-wide presence but are now reflected in the number of sites in Scotland where works are suspended.  CMS has published a timeline summary of the key statements and guidance that have been issued in Scotland and England