Legal Q&A: Should elective medical procedures qualify for sick leave?

All businesses are used to dealing with absences due to illness. But the issue of how to handle attendance and performance issues caused by elective medical procedures is less clear cut.

With about 28,900 cosmetic procedures carried out in 2006, and one in seven couples with fertility problems, it’s an increasingly pertinent issue. Would you, for example, treat an employee undergoing chemotherapy in the same way as you would treat an employee undergoing a course of IVF? Similarly, is the employee recovering from their breast augmentation afforded the same rights as the employee recuperating from heart surgery?

Are employees who choose to have elective procedures still entitled to sick pay?

An employee is entitled to statutory sick pay (SSP) when they are unfit to work, as the reason for their absence is essentially immaterial. Provided they follow the requisite notification requirements then SSP is payable. Staff undergoing fertility treatment are, however, not entitled to SSP unless the effect of that treatment – such as stress or depression – means they are unfit for work.

Contractual sick pay, however, is payable in line with the terms of the contractual scheme. These terms can exclude any payment for absences following elective procedures or you can make payments on a discretionary basis. The latter is advisable but this discretion must always be exercised consistently and with an understanding of the potential discrimination issues.

Employees are often curious about the reason for a colleague’s prolonged absence. What information should we provide?

Information about any medical procedure, elective or not, must be treated with the utmost confidence. That said, with the employee’s consent, it may be appropriate to give colleagues some information. For example, in the case of fertility treatment, this may help to ensure that an employee’s colleagues are sensitive towards them on their return rather than questioning them about their absence. When an employee has had cosmetic surgery, inform colleagues of this and remind them of the organisation’s harassment policy to forewarn them of any changes to the employee’s appearance and ensure they are aware of what is appropriate behaviour.

Are there any discrimination issues that we should be aware of?

Women are still more likely to undergo cosmetic surgery and fertility treatment. Any less favourable treatment of employees undergoing these procedures could potentially be indirect discrimination – for example, deciding to refuse to pay sick pay when a contractual sick pay scheme is discretionary. In addition, if an employee following fertility treatment is treated less favourably – they are overlooked for promotion on the anticipation of a future pregnancy, for example – this would amount to direct discrimination.

If surgery has left an employee disabled then employers must be mindful of the requirements under the Disability Discrimination Act (DDA) to make reasonable adjustments so that the disabled employee can return to work.

Employees undergoing transgender surgery are protected by specific legislation. They must not be treated any less favourably on account of the surgery. Employers also have a duty to ensure that the employee concerned does not suffer harassment on their return to work.

What steps can we take to prepare for any requests for absence?

Draft a specific policy to address elective procedures so that the position is clear and consistent. You will also need to ensure that any policy is transparent and does not discriminate in any way. Employees should be encouraged to discuss any planned absences with their line manager and/or HR team. This will have a dual purpose of preparing the business for the employee’s absence, while also ensuring the employee feels supported and able to return.

What if the procedure goes wrong and the employee is absent indefinitely?

Treat them like any other employee absent on long-term sick leave and comply with any long-term sickness absence policy. Seek medical evidence regarding their condition and prognosis. Consult with them as to a likely return and consider reasonable adjustments to facilitate their return – especially if the DDA is relevant. If, in extreme cases, termination of employment is a possibility, ensure you consider alternative roles and comply with the statutory dismissals procedure. If the employee is receiving benefits under a permanent health insurance scheme, you may be unable to terminate on health grounds.

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