This increasing trend for elective cosmetic surgery is having an impact on the workplace. More and more employees are requesting time off work for their surgery, recovery and aftercare appointments. Understandably, most employers simply do not know how to react. For many, it will be the first time they have received such a request, and their subsequent response can give rise to a legal minefield.
This is a difficult and often sensitive situation. Some employers feel that if an employee has cosmetic surgery only to look better, why should business be affected? The most frequent reaction is to insist that the employee takes unpaid leave or uses their holiday entitlement. Some employers do not see why they should issue sick pay because an employee chooses to ‘enhance’ their features. However, employers need to tread very carefully.
Sick pay
If an employee is unfit for work, for example, because they are recovering from surgery, statutory sick pay (SSP) is still likely to be payable. While the usual rules of the SSP scheme apply, the nature or purpose of the surgery is irrelevant for its purposes. Therefore, employers may not have any say in deciding if and/or when an employee goes under the knife. The employee could go ahead with the procedure and submit a sick note for the recovery period. In many instances, though, where an employer only operates the SSP scheme, employees will choose to use their holiday entitlement so they do not lose out on pay while undergoing and recovering from surgery.
However, what is the position on contractual sick pay in excess of SSP? This really depends on the wording of the company’s sick pay scheme. Many contracts entitle employees to contractual sick pay when they are unfit for work, without further clarification or specifying exceptions. In such a case, the employee would be entitled to receive contractual sick pay even if the time off relates to elective cosmetic surgery.
If company sick pay is provided on a discretionary basis, an employer could decide that contractual sick pay is not payable. However, extreme care should be taken when exercising such discretion, for the reasons detailed below. Each request should be considered on its own merits, taking into account the individual circumstances yet ensuring consistency in approach.
Some company schemes do specify that contractual sick pay will not be paid where the absence is due to elective cosmetic surgery, but even such a policy is not without its risks, again as detailed below.
Employers should also bear in mind the risk of a procedure going wrong and causing a longer-term absence. In such a situation, the employee should be treated as any other sick employee and the employer should consider, where necessary, whether the employee is disabled under the Disability Discrimination Act 1995 (DDA), as the duty to make reasonable adjustments may arise.
Employers should revisit the wording of their contractual sick pay schemes as a matter of urgency, although care should be taken when redrafting such schemes.
The wording could make clear that payment will not be made unless the surgery is for a medical reason. The policy should clarify that, if eligible, the employee will still receive payment of SSP; what is considered to amount to ‘cosmetic’ surgery; what evidence is required to show whether a procedure is medically necessary; and that there is still an element of discretion, with each case being judged on its own merits.
A likely grey area will be where a procedure is not, strictly speaking, medically necessary, but is necessary for some other reason. For example, an employee may find the size or shape of their nose ugly, which severely affects their confidence and may even cause depression. If having a ‘nose job’ is the only way to alleviate the depressive symptoms, is that surgery medically necessary? This is a difficult question and illustrates why it is necessary for employers to have some discretion when deciding whether to pay contractual sick pay.
Flexibility is the key, especially as a rigid policy could give rise to a number of discrimination complaints. For example, to always refuse a request for time off or to issue sick pay when it relates to cosmetic surgery could amount to indirect sex discrimination, as statistics suggest most cosmetic surgery patients are female. Furthermore, in certain situations a failure to pay sick pay could amount to disability discrimination and/or a failure to make reasonable adjustments under the DDA if, for example, it is to correct a disfigurement. Finally, if the surgery relates to anti-ageing, there may also be an age discrimination angle.
This relatively new phenomenon provides yet another headache for the employer, especially if that employer is not prepared. This problem is likely to become more and more common and does not relate only to female employees. The number of ‘tummy tucks’ for men increased by 60% in 2007, compared with the previous year. A pragmatic approach is always sensible, with specific advice being taken if in doubt.
On a positive note, employers should not forget the potential benefits to its business if the procedure is to improve an employee’s confidence.
Joanne Martin is a senior solicitor at Davies Arnold Cooper.
EmploymentJune2008
