As of 8am on 25 March 2020, the Scottish Government and UK Government issued contradictory advice to the construction industry on site closures.  

What's the problem? 

It means that employers might have to choose between breach of contractual obligations and breach of duty to employees and workers to keep them safe from harm.

Most construction contracts will contain provisions that allow parties relief from events outwith their control. Sometimes these are contained within the definition of force majeure (for more on force majeure see my partner Jody Mitchell's blog) or another list of delay or relevant events.  

Often the exercise of statutory powers by government is a relevant or delay event which operates to relieve the contractor from the consequences of not being able to complete on time (and liability for damages for delay/liquidated damages)  

So in Scotland, where a contract relieves parties from the effects of delay (e.g. if sites have to close) parties to construction contracts can rely on the Scottish Government's direction.

That is not yet clear in England so those with contracts governed by English law (and may not refer to the Scottish Government's director) might not have the same clarity.  Health and safety of employees and workers will be paramount to all contractors and employers, but taking the decision to close your site may mean a contractual liability.  

I hope that the UK Government follows the lead of the Scottish Government and (if construction workers are not considered key workers) directs the closure of sites.  

Meantime we wait for the goal posts to move.