What the Employment Rights Act means for neurodivergent employees

HR professionals have a narrow window to update policies, brief management teams and prepare payroll systems before the deadlines arrive.

Statutory Sick Pay: the most significant change for neurodivergent employees

From 6 April 2026, Statutory Sick Pay will be payable from the first full day of sickness absence. The three-day waiting period — which has required employees to be absent for three days before SSP becomes payable — is being removed entirely.

This change is particularly significant for neurodivergent employees. Many neurodivergent conditions involve unforeseen episodic difficulties — periods of heightened anxiety, sensory overload, executive dysfunction or burnout — that may result in one or two days of absence at a time rather than extended sick leave.

Under the current system, these short absences attract no SSP, creating a financial disincentive to take necessary time off. The result, for many neurodivergent employees, has been presenteeism: attending work while unable to function effectively, which compounds difficulties and increases the risk of longer-term absence.

The removal of the waiting period means neurodivergent employees can take short-term absences related to their condition without immediate financial penalty. For HR professionals, this changes how short-term absence should be understood and managed.

A neurodivergent employee with a pattern of one or two day absences is not necessarily a performance or attendance concern — they may be managing a condition effectively within a system that now formally recognises short-term absence as legitimate.

The earnings threshold is also being removed. SSP will be available to all eligible employees regardless of earnings, extending protection to part-time and lower-paid workers who were previously excluded. Neurodivergent employees are disproportionately represented in part-time and flexible working arrangements — this change extends meaningful sick pay protection to a group that previously had none.

The rate of SSP will be calculated at 80% of average weekly earnings or the flat weekly rate, whichever is lower.

HR teams should review sickness absence policies before 6 April 2026, removing references to waiting periods and earnings thresholds.

Management teams need briefing on the change and its implications for how short-term absence is handled. Employers whose reasonable adjustments provisions include flexible or part-time working arrangements should pay particular attention to the earnings threshold change.

The Fair Work Agency: consolidated enforcement from 7 April 2026

From 7 April 2026, the new Fair Work Agency consolidates enforcement of key employment rights into a single body. Initially covering National Minimum Wage, agency worker protections and gangmaster licensing, the agency will extend its remit over time to include holiday pay enforcement and other employment rights.

The agency will have powers to investigate breaches, issue civil penalties and take action against labour exploitation. A statutory advisory board with business, trade union and independent representation will provide oversight.

For most employers already operating in compliance with employment law, the Fair Work Agency does not create new legal obligations. However, the consolidation of enforcement under a single body with investigative powers signals a more active approach to compliance monitoring. HR teams should review existing compliance with National Minimum Wage and holiday pay obligations before the agency becomes operational.

The agency will also serve as a clearer point of contact for employers seeking guidance — replacing a fragmented landscape of enforcement bodies with a single source of advice and support.

What HR professionals should do now

The SSP changes require action before 6 April 2026. Employers should review reasonable adjustments policies alongside sickness absence policies — the two are closely connected where neurodivergent employees are concerned. The government’s Support with Employee Health and Disability service provides tailored guidance for employers managing absence, including advice on reasonable adjustments, return-to-work conversations and complex situations. HR teams managing neurodivergent employees with recurring absence patterns will find it a useful resource.

The broader context matters. The Employment Rights Act 2025 represents the most significant reform of UK employment law in a generation. For neurodivergent employees, the SSP changes alone remove a structural barrier that has discouraged legitimate short-term absence for years. HR professionals who understand the implications — and update their policies and management practices accordingly — will be better placed to support neurodivergent employees and reduce the legal and financial risks that come from getting it wrong.