Additional holiday or sick leave?
If she is unfit for work, she should be treated as sick. Although the surgery was cosmetic, statutory sick pay (SSP) should be payable, subject to normal rules. If company sick pay is payable for any ill-health absence, this should probably be paid. If discretionary, you could withhold sick pay (other than SSP), but tread carefully.
Non-payment of sick pay could amount to discrimination/failure to make reasonable adjustments under the Disability Discrimination Act 1995 (DDA) if surgery has left her disabled. The DDA does not cover “deliberately acquired disfigurements” (eg, tattoos), but unsuccessful plastic surgery is not exempted.
Withholding sick pay could amount to indirect sex discrimination. More women than men are likely to be disadvantaged (almost 90% of plastic surgery patients are female, according to the annual audit of the British Association of Aesthetic Plastic Surgeons members), and such a policy or practice could have to be justified (as a proportionate means of achieving a legitimate aim).
If she is undergoing gender reassignment, special rules apply. The Sex Discrimination Act 1975 makes it unlawful to treat someone who is absent as a result of undergoing such surgery less favourably than if they were absent due to some other cause, which could cover breast surgery.
Confidentiality
Information about surgery will probably be classed as sensitive personal data. Strict rules apply to processing/using such data under the Data Protection Act 1998.
Litigation may arise if she faces unwanted sexual attention on her return. However, others may be offended if her new assets are displayed too openly, so careful management will be required and possibly equal opportunities training given.
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Almost 50% of people change jobs after cosmetic surgery, according to a survey commissioned by Grazia magazine in 2005, so the risk of resignation should also be borne in mind.
By Sarah Johnson, partner, Manches
- For more on employers’ obligations to employees, see Employers’ Law (out on 12 April)
- Each week we ask the experts to answer your legal dilemmas. If you have a legal question or dilemma, e-mail [email protected]
