Employees may need to take time off from work for a variety of reasons; difficulties may arise in the case of time off for cosmetic or elective surgeries. How should that leave be handled? Is it sick leave, holiday or some other kind of leave and what pay is an employee entitled to?
Is there a right to take the time off for cosmetic or elective surgeries as sick leave?
Strictly speaking, there is no statutory right to take sick leave for any reason. However, in practical terms, this right will generally be written into an employee’s contract or an attendance/absence management policy such that employees will have a right to time off if they are not well enough to work.
However, those terms may not go far enough to cover how time off for elective or cosmetic surgery will be handled.
You may want to take a different approach when it comes to time off for cosmetic or elective surgery than time off for other kinds of sickness absence. This becomes a matter of discretion and will depend on whether the surgery is genuinely purely cosmetic or elective.
What enquiries should we make about the surgery?
It is paramount to understand whether or not the surgery itself is purely cosmetic or elective. If the surgery is being carried out on medical advice, then subject to the employee’s eligibility under their contract or any internal policy, sickness absence should be granted. The question as to whether not the surgery is medically required is a matter of fact and context and may require further investigation. Remember that you will need your employee’s consent to obtain any information from their doctor.
Cosmetic surgery is not always carried out for aesthetic reasons and may be recommended under medical advice because of psychological or physical conditions, for example, a breast reduction due to back problems or a breast enhancement which relates to reconstructive surgery after cancer treatment. Further, surgery related to gender reassignment will entitle the employee to sick leave under specific provisions of the Equality Act 2010. Any failure to permit sick leave in that scenario would therefore potentially leave you open to the risk of a discrimination claim.
To help establish the reasons for the surgery, you may need to request medical information. Usually, if a procedure is medically recommended, it should be possible for the employee to provide confirmation from their doctor of matters such as the reason for the recommended operation, any consequences of it not being carried out, the operation date and the recovery period. If that can be provided, and employers are satisfied that the surgery has been medically recommended, it would be advisable to treat any such procedure as sick leave in the normal way.
Subject to that, if the surgery is purely cosmetic or elective, and unless an employee’s contract contains any right to the contrary, there would be no right for an employee to take sick leave to cover the time off.
How should the time off be handled?
If you find yourself in a situation where the time off doesn’t fall within the ambit of sick leave, it will be at your discretion as to how the time off should be handled.
Generally speaking, employees should have a free choice about when they can take holiday, however, one option in this scenario would be for an employee to use holiday to cover the time off for the surgery and for the recovery period. Alternatively, you may be willing to permit a period of unpaid time off.
Are employees entitled to be paid for time off for cosmetic or elective surgeries?
Even if the surgery in question falls to be regarded as sick leave, that may not automatically bring a right to be paid. The position may also differ depending on whether you are looking at statutory sick pay (SSP) or contractual sick pay.
There is something of a grey area in assessing whether or not an employee would be eligible for SSP as a result of cosmetic or elective surgery. While there is no statutory definition of “sickness” in relation to eligibility for SSP, one of the factors in determining eligibility is whether the employee is incapable of working. Someone may have had an operation but, depending on the nature of that operation and their role, nevertheless be capable of working. On the other hand, an individual may be deemed incapable of working and therefore be entitled to SSP, if they are under medical care for a “disease or disablement” and a medical professional has advised them to refrain from work “for precautionary or convalescent reasons”. It is therefore feasible for an employee to be legitimately off sick for the purposes of SSP where cosmetic or elective surgery is undertaken.
In practice, of course, if an employee takes annual leave either because their absence doesn’t fall to be dealt with as sick leave under your policy or simply because they have otherwise chosen to cover the absence in that way, then they would be better off financially than being paid SSP.
As a contractual sick pay policy can be worded as an employer wishes, you could choose to word the policy so that an employee who takes time off for purely cosmetic or elective surgery will not be eligible for contractual (enhanced) sick pay over and above any SSP entitlement. However, bear in mind that if your contractual sick pay scheme is based around eligibility for SSP, then the previous points mentioned above as regards deemed incapacity will need to be considered. Do note that if, having made enquiries about the surgery, you discover an underlying reason for it, not paying contractual sick pay could potentially be discriminatory so it is important here again to have the reasons for the surgery in mind.
If it transpires that the surgery is medically recommended, we would suggest allowing the employee to take sick leave and be paid for such time off in the usual way.
Should we document our approach?
Yes, we would recommend that, once you have determined how time off for elective and cosmetic surgery will be handled and whether or not it will be paid, you document that so that your employees have certainty around how such matters will be dealt with. It may be useful to provide specific examples of what may/may not be included and any medical evidence that may be required to entitle someone to sick leave and/or pay. Once finalised, this can be included as a policy in your staff handbook.
If you need support with managing employee cosmetic or elective surgeries, please contact the Employment Team on 01392 210700 or email enquiries@stephens-scown.co.uk.