By Jo Seery, Professional Support Lawyer
New rules on claiming Statutory Sick Pay come into force on 6 April 2026 as a result of amendments introduced by the Employment Rights Act 2025.
The current position
Statutory Sick Pay (SSP) is currently only payable from day 4 of a period of incapacity. The first three days are known as “waiting days” because it is only after that period of time elapses that SSP becomes payable.
SSP is also only payable to those who earn the lower earnings limit (LEL) or above. The LEL is currently £125 per week.
The effect of the current rules means that over a million low earners who are unable to work due to sickness do not receive sick pay.
Changes
As part of its Plan to Make Work Pay, the Government set out its commitment to strengthen Statutory Sick Pay on the basis of its belief that no one should be “forced to choose between their health and financial hardship.”
It therefore proposed making fundamental reforms to a broken sick pay system that was exposed at its worse during the Covid Pandemic.
In its consultation on SSP, launched in October 2024, the Government set out its proposed amendments to remove the LEL and the three day waiting period as part of its Employment Rights Bill (as it was then). It sought views solely on how SSP should be calculated as a percentage of earnings. On 4th March 2025, the Government published its response to the consultation and set out its plan to calculate SSP for low earners at 80% of normal weekly earnings.
Removal of the three waiting days
From 6 April 2026 SSP will be payable from the first day of incapacity for work and the three waiting days are abolished.
One consequence of the removal of the three day waiting period should enable those who have been signed fit to return to work on a phased basis to claim they are entitled to SSP for the single days they do not work because of incapacity. So, for example, where an employee works five days a week and is signed fit to return to work for three days a week working Wednesday to Friday SSP may be payable for the two days of incapacity on Monday and Tuesday. It is suggested that evidence supporting a phased return to work such as from a GP or other medical expert explaining a person’s incapacity for the days not worked, is obtained. This could be in the form of clear recommendations made in a fit note or letter.
The days not worked and treated as periods of incapacity will count towards the maximum number of weeks for which SSP is payable which is 28 weeks.
Removal of the Lower Earning Limit (LEL)
Those earning less than the LEL, currently £125 per week (increasing to £129 per week from 6 April) will also be entitled to SSP from 6 April 2026. This is because the requirement to earn at least the (LEL) to be entitled to SSP will be removed.
How will SSP be calculated from April 2026
Section 11 of the Employment Rights Act 2025 amends the weekly rate of SSP to the lower of the flat rate of SSP currently £118.75 (increasing to £123.25 from 6 April 2026) or 80% of the employee’s normal weekly earnings. Normal weekly earnings are calculated over an eight week period ending on the last normal pay day before the first complete day of sickness absence.
In its response to the consultation on SSP, the Government acknowledged that, “a small number of employees who earn just above the Lower Earnings Limit may receive less SSP than they would under the current system.” For example, an employee who has normal weekly earnings of £125 would receive SSP of £100 (80% of the employee’s normal weekly earnings) instead of the current rate £118.75. However, the Government relies on its own internal modelling, arguing employees would not be worse off over the course of their sickness absence as a result of the rate being set at 80%. It considers that the 80% rate strikes a balance between providing a fair percentage for low earners while enabling employers to provide financial support to low paid employees.
Impact of the changes
Many employers have voiced concerns that because SSP is payable from day one, this will encourage employees to be off sick. It seems unlikely these concerns are well-founded, particularly given the low level of SSP payable.
We anticipate some employers are likely to want to review their sickness policies and it will be important to engage with them over this to ensure any contractual enhanced provisions are not eroded as a response to having to provide SSP from the first day of sickness. Many Unions have already secured much better contractual sick pay arrangements which reduce the risk of sick workers coming into work and spreading illnesses. These arrangements undoubtedly foster a more supportive working environment and in turn a more productive workforce.
