Employers and Unions are calling on government to provide detailed safety rules. They want rules prescribing how they should aim to protect employees and the public from the risk of transmission of COVID-19. These calls are understandable. This risk of transmission is known, but the level of risk (the likelihood of transmission in different circumstances) is not. So employers cannot carry out their risk assessments in the usual way, and therefore want something more prescriptive to provide clarity on what an employer should do in any particular situation.

This poses a challenge for the Health and Safety Executive. Employers want prescriptive safety rules. However, until now the UK’s regime has made it the employers’ obligation to identify and control the risks it creates in its business activity, rather than the regulator’s obligation to prescribe how it should do so. HSE may be reluctant to shift to an approach which could encourage employers to following prescriptive rules without thinking about whether they have in fact addressed the risks present in their business.

Reconciling this tension will probably require bold thinking and clear wording. Anything short of this may leave employers, with business-critical decisions about next steps, uncertain as to the appropriate treatment of this risk