Employers need to make sure they know their rights as more people request sick pay while they take time off for cosmetic surgery, warns Malcolm Gregory, partner at Withy King Solicitors. He says the issue of cosmetic and elective surgery and sick leave entitlement is a potential minefield.
“We are getting inquires from an increasing number of employers about whether contractual sick pay should be paid for absence due to cosmetic surgery procedures,” he says.
Initially, many companies are reluctant to pay sick pay relating to such procedures or tell employees that they must use their annual leave entitlement.
“In cases where company sick pay is not offered and employees are only entitled to receive basic statutory sick pay, employers might find employees asking to take annual leave. While holiday pay is not usually paid if an employee is sick, employers can take a pragmatic approach if employees request this. However they must remember not to force employees to take holiday as this might be deemed to be discriminatory,” Gregory adds.
He says where contractual sick pay is offered, the wording of the employment contract needs to be carefully considered.
“If the contract states sick pay will be paid for any absence owing to ill health, it’s likely the employee will be entitled to be paid, whatever the reason for their absence. However, if a contract stipulates that sick pay is discretionary, an employer must not automatically assume they can refuse to pay where an employee opts to undergo elective surgery.
“If an employer does exercise its discretion and refuse to pay, it should be aware of the risk that they may find themselves faced with a sex discrimination claim.
“That’s because the law says a workplace rule or policy which disadvantages a larger proportion of women than men may amount to indirect sex discrimination. As almost 90% of cosmetic procedures are carried out on women, it could be argued that a decision not to pay sick pay in such circumstances or forcing employees to use their annual leave is indirectly discriminatory.
“In addition to potential sex discrimination claims, employers should be aware of the risk of disability discrimination claims. For example, it is possible that an employee who has suffered severe taunting as a result of a particular facial feature could suffer psychological symptoms to the extent that they might be covered by the Disability Discrimination Act,” Gregory adds.
