Simon Whitehead, Partner Brabners Chaffe Street, a Manchester-based law firm.
More and more people are having cosmetic or elective surgery, either privately, or via the NHS and operations such as breast implants, nose jobs, or face lifts are now widely available, with many employees undertaking such surgery.
Given the often intrusive and complicated nature of such operations, employees are often unable to return to work and will have a period of sickness absence. Do employers have to pay this?
The general rule is that where an employee who has undergone such surgery complies with the sickness reporting procedures in place for that business and has obtained a legitimate sign-off from their GP, then their sickness counts exactly the same as any other sickness, and must therefore be paid, in addition to any contractual sick pay to which they are entitled.
The reason for that absence does not matter and employers must exercise great caution in this area.
Some may argue that elective operations are down to personal choice and not medical need, but the issue has many shades of grey and businesses need to be alive to this, particular with regard to employees who are considering sex change operations, as there are specific pieces of legislation designed to provide protection in those circumstances.
An employee who wishes to have surgery to correct something physical with which they are unhappy can also suffer psychological issues – which again lead us into the sickness absence area and may complicate matters further.
For example, an employee who suffers depression due to unhappiness because of a physical issue may be able to have sickness absence due to that psychological illness so, arguably, that sick pay should continue if they seek surgery to remedy the issue, as the cause and the effect are inherently linked.
Statistics show that the majority of operations are still carried out women, meaning there may also be an argument that indirect sex discrimination occurs where for example, in a case of an employer who has a discretionary policy, they ask employees undertaking cosmetic surgery to use their holidays and not claim sick pay.