As the Covid-19 pandemic continues to impact industries of all disciplines across the globe, the construction sector in particular has faced a plethora of mixed messages with the UK and Scottish Governments issuing different advice. Anne Struckmeier, construction and engineering partner at Addleshaw Goddard in Edinburgh, explores how this impacts the industry both north and south of the border.
As many of us settle into a new routine working from home, for a large percentage of workers in the construction industry the past few weeks have created confusion, concern and challenges. Across the UK, there has been uncertainty over whether construction projects could continue as it was disputed whether such works are essential throughout a global health pandemic.
Until two weeks ago, works were still underway across some construction sites in Scotland. However, the Scottish Government has since issued a clear and simple update: work on construction sites – unless it is for essential projects – should cease immediately. Essential works have been deemed as:
• Those to create or repurpose facilities which will be used directly in Covid-19 related activities
• Projects to create or repurpose facilities which will be used to accommodate key workers, or free up space in facilities to be used directly in Covid-19 related activities
• Projects which are considered essential public services
• The repair and maintenance of critical infrastructure
This new advice brought construction firm Morgan Sindall’s work on the £250 million Sighthill project to a close for the time-being, as well as Bam and Kier halting works to developments across the country as they did not meet the ‘essential’ criterial.
For many, the straightforward and clear-cut direction from the Scottish Government was welcomed. However, like a variety of industries, the closure will mean a seismic impact to the construction sector, both now and looking beyond these current challenges.
A study commissioned by the University of Strathclyde’s Fraser of Allander Institute (FAI) has estimated that Scotland’s construction output could decline by 40-50 per cent if the new restrictions continued for three months. This detrimental impact will be felt by thousands, but could it be justified to continue works as we endure a global crisis?
Well, in the eyes of the UK Government, construction works can still continue. As it stands, the UK Government has not taken the same approach as Scotland and does not require construction sites or businesses to close, but it does require any employer who has staff on site to ensure that employees are able to follow Public Health England guidance.
This is the case even for large-scale construction works with the high-profile HS2 project given formal approval for construction works to begin by UK Government last week, despite lockdown measures.
It’s helpful to note then that Build UK and the Construction Leadership Council have produced clear Site Operating Procedures (SOPs) on applying the UK Government’s guidance to the construction industry, including information on how to decide whether work can be carried out. These SOPs place a strong emphasis on social distancing measures, along with enhanced cleaning regimes.
A vital element of the SOPs is their expectation that work should not take place if it cannot be undertaken safely, either due to a lack of suitably qualified personnel being available or due to social distancing being implemented. The Construction Leadership Council has confirmed that all construction sites which cannot implement the SOPs should not remain open.
Social distancing principles on construction sites include:
• Non-essential physical work that requires close contact between workers should not be carried out
• Work requiring skin to skin contact is not permitted
• All other work should be planned to minimise contact between workers
• Site meetings should be restricted to those that are only absolutely necessary – only persons whose participation is necessary should attend and attendees should be two metres apart from each other.
With unions and industry bodies continuing to express concern over the ongoing operation of construction sites in England, construction firms are particularly advised to monitor government publications and industry guidance for the latest news to ensure they’re operating the right working environment.
It is inevitable that the differing approaches of the UK and Scottish Governments, the variability of contract terms covering circumstances akin to pandemics and the uncertainty over the statutory status of government guidance is going to result in disputes in due course at a time when the industry can least afford them.
The Scottish Government is set to review its instruction to the construction industry within the next three weeks. Within this period, it may yet be the case that the UK Government tightens its position and issues a similar guidance note nationwide.
No matter which way governments turn, everyone connected with the industry is grappling with incredibly difficult judgment calls, for their businesses, their clients and their staff and they deserve absolute clarity in future amendments to guidance of what is expected of them and in what circumstances.
