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There is no common law right to receive a wage or salary under a contract during periods of sickness absence. Many contracts of employment offer contractual sick pay at normal rates of pay for an initial period of absence but this is not available to all. For those who are not paid under contractual sick pay provisions, statutory sick pay is the only option, and until now only from day four of the absence.
The Employment Rights Act 2025 (ERA 2025) amends the Social Security Contributions & Benefits Act 1992 to remove the waiting period for statutory sick pay (SSP) making it payable from the first day of sickness absence. Currently there is a three-day waiting period which means that unless contractual sick pay is available no sick pay is paid for the first three days of absence. This will change from 6 April 2026.
The Employment Rights Act 2025 (Statutory Sick Pay)(Consequential Amendments) Regulations 2026 (SI 2026/210) implements these changes.
The Regulations also remove the lower earnings limit for SSP eligibility but introduce a cap of 80% of earnings on SSP.
Many people, mistakenly believe, that it is a reasonable adjustment to disability to pay sick pay if the absence relates to an Equality Act disability. This is incorrect. The only exception to this rule is the one invoked in Meikle v Nottingham which states that if the employee cannot return to work because the employer refuses to make reasonable adjustments, and the employee is no longer signed off under a sick note, the employer may be obliged to reinstate their pay in full, pending the adjustments being made.
It is common practice for employers to pay employees returning from sick leave and who are Equality Act disabled when they are working a phased return. Note however that this is a matter of custom and practice in some organisations and not a legal requirement.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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