Tughans LLP on employment law and difficult workplace scenarios.

For January 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“We have an employee who has informed us she is planning to undergo cosmetic surgery. She has confirmed her recovery time will be approximately 2 weeks and has requested paid leave under our company sick pay scheme. How do I handle it?”

According to figures from the British Association of Aesthetic Plastic Surgeons, over 31,000 cosmetic procedures took place in 2022 - an increase of 102% from 2021, which shows no sign of slowing.

Firstly, you need to determine whether the employee is eligible for Statutory Sick Pay (SSP). The sick pay regulations don’t actually define what “sickness” means for eligibility purposes; the main question is whether the employee is capable or incapable of work, or has been instructed not to work for precautionary or convalescent reasons by a medical professional. This will depend on the nature of the surgery and their role – they made be able to work as normal or with some temporary adjustments while they recover.

This means there is no statutory distinction between absence necessitated by accident or illness and absence which are due to elective procedures such as cosmetic surgery. Provided that the employee satisfies eligibility requirements for SSP, they will be entitled to receive SSP from their fourth day of absence for up to 28 weeks, in the normal way.

The next question is whether the employee is eligible for enhanced pay under your company sick pay scheme. Unlike SSP, employers can set their own criteria for company sick pay, and can choose to exclude absence due to elective surgery. The starting point will be to carefully review the relevant wording in the employee’s contract and your sickness absence policy.

These may not make a specific exception for absence due to cosmetic surgery, and depending on the exact wording, you may have to provide company sick pay. This may be the case if your CSP policy is based on the SSP eligibility requirements.

If there is an exclusion which covers elective surgery, you will need to consider its precise wording, as it is unlikely to envisage all the possible reasons for having elective surgery – and you should be mindful that the employee may have compelling and genuine medical reasons for undergoing a cosmetic procedure which may trigger the entitlement to company sick pay. You may need to have a confidential discussion with the employee to better understand their circumstances.

Your conversation might confirm that their surgery is reconstructive or results from serious injury, illness or gender reassignment. They may view the surgery as essential to their mental wellbeing. It may have been recommended as part of treating an underlying medical condition. You should be cautious in these circumstances, as treating an employee less favourably in terms of applying your sick pay scheme (for example compared to an employee who has broken their leg) could be discriminatory, including on the grounds of disability, sex, age and/or gender reassignment.

If the employee suffers complications as a result of their cosmetic surgery (such as infection) which necessitates further sick leave, this is likely to be non-elective and they would be entitled to company sick pay.

If an employee takes frequent sick leave to undergo or recover from cosmetic surgeries and their absence rate is not acceptable, you could begin an absence management process in the usual way, being mindful of any underlying health conditions.

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