One of our employees has said that she will be undergoing cosmetic surgery in the New Year and will need to take time off. Will that time count as sickness absence, and are there any other points we should be aware of?
We often find that our answer to a question is “it depends”! That certainly applies to this question. Whether an employee should use annual leave (unpaid or from their usual entitlement) or whether they could be classed as absent due to sickness may depend on the nature of the cosmetic surgery they are having. Cosmetic surgery may not be for simply aesthetic reasons and can be recommended under medical advice, for example, a breast reduction due to back problems. It could also be related to psychological conditions.
An employer could request evidence of the medical advice if they feel it is necessary. If this is provided, then of course the sickness absence should be granted and the employee paid either Statutory Sick Pay or contractual sick pay as specified in their contract of employment. This is certainly the case with any surgery related to gender reassignment as specifically provided for in the Equality Act 2010.
Elective surgery for purely cosmetic reasons, such as breast enhancement, does raise different issues. Employees do not have a statutory right to take the time off for their surgical appointment. There is no general right for an employee to take time off for routine medical or dental appointments if they are not unfit for work. Unless the employee’s contract contains such a right, any time off for such appointments (whether paid or unpaid) is at the employer’s discretion and the employee could be asked to take annual leave for the surgery.
However, the recovery time after cosmetic surgery may be classed as time when an employee will be unfit for work if a surgeon or doctor recommends the employee stays away from work for a period of time. It could be that an employer and employee agree a combination of annual leave, unpaid leave and sickness absence for elective cosmetic surgery. Employers should also bear in mind that case law has established that an employee who is on annual leave and becomes sick during that period of leave should be able to take the ‘lost’ leave at another time (please see our previous update on the case law here).
As always, employers should act consistently for all employees as failure to do so can lead to discrimination claims. Some larger employers have chosen to deal with cosmetic surgery specifically in their absence policy to help managers take a clear and consistent approach.
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