Elective medical procedures

As elective procedures such as cosmetic surgery and fertility treatment become increasingly affordable, are you confident of how to manage absence for this sort of treatment?

Picture this scenario: Lesley, a receptionist, goes on holiday. Her husband calls to tell you she has had a face-lift that has gone wrong, and she won’t be able to return to work immediately after her holiday. He asks if she can cancel the rest of her holiday, and receive sick pay instead.

A few weeks later, Lesley attends a return-to-work interview. The swelling on her face has gone down, but she has been left with unsightly scars, which her specialist advises are permanent. Since the bungled operation she has become depressed, and is embarrassed to go out. She asks you to move her to a non-customer facing role.

Q Do you have to grant sick pay?

A Your sick-pay policy probably doesn’t cover this sort of problem, so consider the general wording. If it gives a contractual entitlement to be paid for any sickness absence (and to convert holiday into sickness absence), you are likely to have to pay her.

If it provides for discretionary sick pay, you may be able to avoid paying her if you give proper, objective consideration to whether or not to pay her. Even if your sick pay policy is discretionary, you will almost inevitably need to pay statutory sick pay.

Q Do you need to consider her request to change roles?

A Yes, you do. Assuming her scar is a severe disfigurement, failing to consider her request could risk unlimited liability for disability discrimination compensation. You don’t have to create a role especially for her, but you are under a duty to look around your organisation for any other vacant role which she could perform.

Q Is unfair dismissal legislation relevant?

A Yes. Even though Lesley’s scar is not a disability, you should still consider moving her. If you don’t, and you dismiss her, you would have trouble persuading a tribunal that you had followed a fair procedure before dismissal.

Q What about IVF treatment?

A Dealing with this sort of elective procedure involves a number of legal issues, regardless of whether or not the treatment succeeds. Despite this, very little is written about it in the context of employment rights and, probably for very valid reasons, there haven’t been any reported cases on it. Employees undergoing IVF treatment may prefer to accept they are dealt with by an employer rather than make a very private matter public.

The central concern of many employers is that an employee’s attendance will be difficult to manage. Dismissing or disciplining a woman for IVF treatment does not necessarily expose you to a claim for sex discrimination, because men and women both undergo fertility treatment. However, if you dismiss her on the basis of assumptions about her attendance pattern, this may amount to direct sex discrimination. You need to act on facts, rather than assumptions.

You need to ask the employee exactly what consequences the treatment will have on their attendance and explain why you need to know (ie to plan adequate cover). Don’t let the line manager over-react and tell the employee they would prefer them to take unpaid extended leave, rather than have to manage an irregular absence pattern.

Q Is pregnancy or indirect sex discrimination relevant?

A Women generally require more treatment for IVF than men do for fertility treatment, so they are more vulnerable to being disciplined for absences to undergo IVF. You could be exposed to an indirect discrimination claim if you could not justify the operation of your absence rules, and they adversely affected a woman undergoing treatment.

Q What about pregnancy discrimination?

A At the moment, this is an open question. However, the Equal Opportunities Commission believes the Sex Discrimination Act 1975 should be amended to cover discrimination on the grounds of pregnancy and maternity, which would include issues only arising in connection with pregnancy, such as IVF treatment and miscarriage.

Q Must you agree to part-time work or a career break for a woman undergoing treatment?

A No – she has no absolute right to these options, but the same issues of potential discrimination arise as above. If you agree to a request, you need to consider:

– how long it will last

– which terms of the employment contract will continue during a career break; and

– whether enhanced maternity rights be available if the treatment succeeds.

Q Anything else?

A Yes – confidentiality. They may be happy to talk to HR about her situation, and they will recognise their line manager needs information to deal with absence cover. However, they may not want colleagues to know. You should clarify this with them and do as they wish.

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