By Jo Seery, Professional Support Lawyer
The 6 April 2026 sees the second phase implementing the following key employment rights for workers.
- A new right for low earners to be paid statutory sick pay (SSP) and for other workers to be entitled to claim SSP from the first day they are too ill to work.
- A day 1 right to paternity leave and unpaid parental leave.
- The disclosure of sexual harassment in the workplace is treated as a protected disclosure under existing whistleblowing provisions.
- An increase in the maximum protective award from 90 days’ pay to 180 days’ pay where an employer fails to consult appropriate representatives in a collective redundancy situation.
- Simplification of the trade union recognition process
- A requirement on employers to keep records on entitlement to holidays and holiday pay under the Working Time Regulations 1998.
- Voluntary Equality Action plans for employers with 250 or more employees which address the gender pay gap and set out the support for employees going through the menopause
On 7 April 2026 a new labour enforcement body, the Fair Work Agency (FWA) is established.
In this article we provide a recap of what comes into force and what this means in practice for workers and trade unions.
Statutory Sick Pay (SSP)
The following amendments to SSP come into force:
- Removal of the three day waiting period meaning that those in employment can be paid SSP on the first day they are sick and unable to work
- Removal of the Lower Earnings Limit (LEL) – meaning that those who earn less than the LEL (£129 per week from 6 April 2026) can be paid SSP.
The effect of these amendments is that low earners and others in employment can be paid SSP from the first day they are unable to work due to sickness.
Transitional provisions apply to protect the following:
- Those who have been off sick for one or two days before 6 April 2026. In this case, they will receive SSP if they are still off sick on 6 April, not for the two days which would have been treated as waiting days before 6 April 2026
- Those who have normal weekly earnings between £125 and £154.05 before 6 April 2026 and are in receipt of SSP before 6 April 2026 will continue to be paid SSP at the weekly rate of £123.25 if they continue to be off sick on 6 April 2026 until they return to work or exhaust entitlement to SSP. The transitional provisions will not apply if they return to work and have another period of sickness. In that case, the new rate of SSP will apply (80% of earnings).
- Those who earned below the LEL of £125 before 6 April 2026 and so were not entitled to SSP will be entitled to SSP from 6 April 2026 if they started their sickness absence before 6 April 2026 unless they had continuous sickness absence starting before 22 September 2025. This is because they will have exhausted entitlement to SSP which is payable for a maximum of 28 weeks.
Day 1 Paternity leave
The requirement to have 26 weeks continuous service by the 15th week before the expected week of birth to be entitled to two weeks paternity leave is removed meaning that employees have a day one right to paternity leave.
The day one right applies where the:
- child is born or is expected to be born on or after 6 April 2026
- child is placed for adoption on or after 6 April 2026 (or the child enters Great Britain on or after that date)
- primary carer dies on or after 6 April 2026 (irrespective of date of birth or placement) in which case their partner is entitled to the bereaved partner’s paternity leave
Employees will also be entitled to take both paternity leave and shared parental leave as the restriction which prevented employees from taking statutory paternity pay following a period of shared parental leave is removed.
Paternity pay is increased from £187.18 per week to £194.32 as part of he annual increase in statutory benefits.
In workplaces where there is no enhanced contractual right to paid paternity leave members may need to check that the employer is providing the minimum requirements. Research from the Centre for Progressive Policy and Women in Data found that in countries which provide for six or more weeks paternity leave have a smaller gender wage gap which may be of assistance to unions in negotiations with employers who voluntarily introduce equality action plans to address the gender pay gap.
Day 1 right to unpaid parental leave
The ERA 2025 removes the requirement for employees to have one years’ service to be entitled to take eighteen week unpaid parental leave to care for each child under the age of 18. The right therefore becomes a day one right. However, take up of unpaid leave is generally very law. The Government is currently conducting a review of parental leave and pay and it is hoped this will result in a long overdue wholesale reform of parental leave rights. Until then it is left to unions to continue to negotiate more family friendly improvements in the workplace.
Disclosure of sexual harassment amounts to a protected disclosure
The statute makes clear that disclosure of sexual harassment which has occurred, is occurring or is likely to occur in the workplace amounts to a protected disclosure. Workers may therefore be more likely to report not only instances of sexual harassment in the workplace but circumstances where sexual harassment is likely to occur. Workers who do so are protected from being unfairly dismissed and subject to a detriment. In some cases, an employee who is dismissed and has an employment tribunal claim may be able to claim interim relief (an order requiring the employer to retain them in employment or pay them until a full tribunal hearing takes place.)
Employers are already under a statutory duty to prevent sexual harassment in the workplace and should be consulting with unions on what protections are in place to prevent workers being subject to sexual harassment in the workplace including by third parties.
Increase in the protective award
Employers are required to consult the appropriate representatives when they propose to make 20 or more redundancies at one establishment within a period of 90 days. The definition of redundancy is wide enough to cover those employees dismissed and re-engaged on new (usually poorer) terms and conditions. The appropriate representatives with be the union where the union is recognised or elected representatives where the union is not recognised.
Where there is a complete failure to consult by the employer, as happened in the well-known case of P&O Ferries, an employment tribunal can order the employer to pay a maximum protective award of 90 days’ pay for each affected employee. In a move designed to encourage employers to consult the appropriate representatives the ERA increases the maximum award to 180 days’ pay per employee. It is also worth remembering that a failure to consult where employees are dismissed and re-engaged will also amount to a breach of the ACAS Code of Practice on Dismissal and Re-engagement. In that case a tribunal can increase an award by up to 25%.
Simplification of the trade union recognition process
The following are the key changes to the statutory recognition process.
- Replace the 10% admissibility test with a “required percentage test” which by default is at 10% but can be reduced to as little by 2% in regulations under a power afforded to secretary of state. This will not apply where a recognition application was received by the Central Arbitration Committee (CAC) before 6 April 2026.
- Remove the requirement from the admissibility test that the Union must show it is likely to obtain a majority in a recognition ballot.
- Delete the requirement for unions to have the support of at least 40% of the workforce in the proposed bargaining unit in a trade union recognition ballot. Instead, unions would only need a simple majority of those voting. Note that this will not apply in cases where the CAC informed the parties before 6 April 2026 that a ballot would be held.
- When the CAC is deciding whether there is already a collective agreement in force under which a union is recognised, it must ignore any such agreements entered into during a "restricted period". This will not apply in cases where the union making the application made its request for recognition to the employer before 6 April 2026.
Holiday pay records
A new regulation 16B of the Working Time Regulations 1998 (WTR) imposes an obligation on employer to keep the following records in order to show that they have complied with the WTR provision entitling workers to statutory paid holidays of 5.6 weeks.
The records must cover:
- Entitlement to annual leave (Reg 13 WTR).
- Entitlement to additional annual leave (Reg 13A (1) WTR).
- Entitlement to annual leave of irregular hours and part-year workers (Reg 15B (2) WTR.
- Entitlement to pay for annual leave (Reg 16(1) WTR).
- The requirement to make a payment in lieu of holiday outstanding on termination of employment, including any holiday carried forward from a previous leave year (Reg 14 (2) & (6) WTR).
- The requirement to make a payment to irregular hours workers and part-year workers in lieu of holiday outstanding on termination of employment (Reg 15E (2) WTR).
The records must be kept for a period of 16 years. The regulations do not set out the manner and format in which the records are required to be kept. Unions can request these records where there is a dispute about holiday entitlement and pay.
Comment
As well as providing workers with improved rights these changes should also provide unions with an opportunity to negotiate improvements and protections for workers in those workplaces where the protection of workers has been lacking.
