Summary
- Since 6 April 2026, statutory sick pay runs from the first day of absence, with the three waiting days and the lower earnings limit both removed.
- Employees self-certify for seven days or fewer and provide a fit note beyond that, and an employer cannot substitute annual leave for sick leave.
- From 1 January 2027, six months’ service supports an unfair dismissal claim and the cap on the compensatory award disappears entirely.
- This guide explains sickness absence obligations for employers and business owners in England and Wales.
- LegalVision’s employment lawyers advise employers on managing long-term absence, drafting sickness absence policies, and meeting reasonable adjustment duties under the Equality Act 2010.
Tips for Businesses
Let a long-term sick employee carry over four weeks of unused annual leave, usable within 18 months. Treat a ‘may be fit for work’ note as a prompt to discuss changes, not as a refusal to return. Update your COVID-19 policy, since the statutory self-isolation rules no longer exist. Speak to an employment lawyer at LegalVision about a capability process before you start it.
Employers in England and Wales must give sick employees statutory sick pay and manage their absence fairly. Since 6 April 2026, statutory sick pay runs from the first day of absence. The three waiting days and the lower earnings limit have both gone. Low earners now receive the flat rate or 80% of normal weekly earnings, whichever is lower. Employees self-certify for seven days or fewer, and provide a fit note beyond that. You cannot make a sick employee take annual leave instead of sick leave. From 1 January 2027, six months’ service will support an unfair dismissal claim, and the compensation cap disappears. This article explains an employer’s obligations when an employee is off sick in England and Wales, covering sick leave and statutory sick pay, annual leave interaction, when you can require an employee to leave work, dismissal on capability grounds, and what changes on 1 January 2027.
Taking Sick Leave
As an employer, you should know that your employees may have a right to take time off work due to being sick. This is commonly known as sickness absence or sick leave.
Short-Term Sick Leave and Sick Notes
Your employee only needs to provide sickness evidence after taking more than seven days off work. Statutory Sick Pay was reformed in April 2026. The reforms removed the lower earnings limit and three waiting days. This made SSP a day-one entitlement. The seven days include any non-working days when they continued to be unwell. In these cases, the employee must give you a fit note. People commonly call this a sick note. They can get one from a doctor or another registered healthcare professional. This may include a nurse, occupational therapist, pharmacist or physiotherapist.
Long-Term Sickness and Annual Leave
If your employee is off sick for more than four weeks, this is long-term sickness absence. Being ‘long-term sick’ may affect your employee’s ability to take their full annual leave entitlement. When this happens, you must allow the employee to carry over up to four weeks of unused annual leave. Any carried over leave must be used within 18 months of the relevant year.
When employees fall sick during a time already away from work on annual leave or just before taking annual leave, they have the right to replace those days as days taken as sick leave. Equally, where an employee is off work on sick leave, their standard annual leave entitlement builds up.
Forcing an Employee to Leave Work Sick
If an employee is unwell, you cannot force them to take time off as annual leave when they have the right to sick leave. This applies even when the employee is already off work for annual leave. However, there are instances when you can require your employee to leave work concerning sickness.
COVID-19
The COVID-19 pandemic led to specific legal requirements around self-isolation, but these have since been withdrawn. Employees no longer have to self-isolate by law if they test positive for COVID-19. This also applies if they have symptoms or live with someone who does. Public health guidance instead encourages employees to stay away from others while they have symptoms of a contagious illness. As an employer, you should review your COVID-19 policy regularly. This helps ensure it reflects current public health guidance, not earlier legal requirements that no longer apply.
As an employer, you may need to ask employees to leave work after close contact with COVID-19. In this instance, you must send your employee home immediately.
Dismissal Due to Time Off for Sickness
Where an employee is off work for more than four weeks and considered as ‘long-term sick’, you may decide to dismiss them. However, this is a last resort. You cannot treat or dismiss an employee unfairly simply because they take time off work.
If, as an employer, you do consider dismissing your employee due to sickness, you should follow the ACAS Guide to Discipline and Grievance as part of your standard dismissal procedure. When considering dismissal due to sick leave, there are two actions you must first take.
For instance, you should:
- explore the possibility of the employee returning to work with different conditions such as, for example, carrying out less rigorous work or working part-time; and
- discuss with your employee their views on the possibility of their health improving and, therefore, when they may wish to return to work.
Grounds for Dismissal Due to Sickness
It is also important to distinguish between two different grounds for dismissal relating to sickness absence:
- Capability (medical incapacity): the employee cannot perform their role because of an ongoing or long-term medical condition. This applies even after reasonable adjustments, occupational health advice and consultation.
- Persistent short-term absence: the employee has frequent, unconnected periods of sickness absence. Together, these absences have an unacceptable impact on the business. This applies even if no single absence justifies dismissal on its own.
The process and evidence you need differ depending on which grounds apply. Capability dismissals usually require medical evidence and a genuine return-to-work assessment. You should consider whether the employee can return with or without adjustments. Persistent absence dismissals focus on attendance patterns, warnings and fair opportunities to improve.
You should also be alert to the risk of disability discrimination. If the employee’s absence relates to a condition that meets the legal definition of a disability under the Equality Act 2010, you must consider:
- reasonable adjustments before dismissing; and
- ensure the decision is not directly or indirectly discriminatory, or you risk a discrimination claim in addition to (or instead of) an unfair dismissal claim.
“The two year qualifying period has been doing a lot of quiet work in absence cases, and from January it stops. Employers who were comfortable managing someone out at month eighteen now have a tribunal claim to think about, with no ceiling on the compensation. Fix the process this year, because the process is the whole defence.”
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Returning to Work After a Period of Sick Leave
Once your employee provides you with a ‘fit note’ after a period of seven or more days of sick leave, it will either state that they are ‘not fit for work’ or ‘may be fit for work’. You may take a copy of the note.
If you receive a note stating ‘may be fit for work’, you should be prepared to make changes to assist the employee in returning, which should be discussed with the employee in advance. Where the employee does not agree to these changes, they are considered ‘not fit for work’. A doctor may also provide specific recommendations on the ‘fit note’ about how to help your employee return to work.
If an employee returning to work has a long-term medical condition or disability, you must make ‘reasonable adjustments’. These are changes made to the employee’s working conditions, such as:
- reducing the number of hours worked; or
- the equipment the employee uses.
Since April 2024, employees have a day one right to request flexible working (e.g. reduced hours or a different working pattern), removing the previous 26-week service requirement. This may be relevant where an employee returning from sickness absence seeks a permanent change to their working arrangements, rather than or in addition to a reasonable adjustment.
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Key Takeaways
Many rules surround employees’ rights to take time off work as sick leave and when you may require an employee to stay away from work due to sickness, either temporarily or permanently. As an employer, you should be aware of these rules. Not following them correctly could result in an employment tribunal for unfair dismissal.
If you need help with rules regarding employees staying away from work due to sickness, LegalVision provides ongoing legal support for all businesses through our fixed-fee legal membership. Our experienced employment lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Can an employer force their employee to take annual leave due to sickness?
When an employee is sick from work, an employer cannot force them to take time off work as annual leave. This also applies when the employee is already away from work on annual leave.
Can an employer ever force their employee to immediately leave work in relation to sickness?
There is no longer a specific legal requirement to send an employee home for COVID-19 reasons, as the statutory self-isolation rules have been withdrawn. However, an employer can still ask an employee showing symptoms of a contagious illness to leave work as a matter of workplace policy and general health and safety obligations.
Where an employer sends an employee home or asks them not to attend work on health grounds (whether due to a contagious illness or another medical reason), this may amount to a medical suspension. Provided the employee is willing and able to work but is being kept away from the workplace for health and safety reasons, they are entitled to be paid their normal salary for the duration of the suspension, rather than statutory sick pay or no pay at all.
This differs from suspension on sickness absence where the employee is genuinely unable to work due to their own illness, in which case normal sick pay provisions (contractual or statutory) apply instead.
How much statutory sick pay must I pay?
Statutory sick pay runs from day one since April 2026, with no waiting days and no lower earnings limit. Employees receive the weekly flat rate, or 80% of their normal weekly earnings, where that comes to less. Contractual sick pay schemes can pay more.
When can I fairly dismiss an employee on long-term sick leave?
Only as a last resort, after consultation, medical evidence and a genuine look at adjustments. Capability dismissals turn on whether the employee can return, with or without adjustments. Where the condition is a disability under the Equality Act 2010, dismissing without exploring reasonable adjustments risks a discrimination claim.
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