Sick pay and elective surgery: do employers have to pay?

As cosmetic surgery becomes increasingly common employers may have to grapple with the HR issues that accompany elective surgery.

There are various difficult questions for employers faced with elective absences by their employees but sick pay may be particularly problematic.

Background

Although tabloids recently revelled in reporting the disciplinary hearing of a high ranking female police offer who criticised a female colleague for having a surgical breast enlargement before exposing her own breasts to make a point the case does raise interesting HR and legal questions of how such elective is viewed by employers.

The inference, by another woman no less, that the decisions a women makes for her body might impact on her career hits the equal opportunities nerve. Most would agree that, within the realms of professionalism, what a person chooses to do or not do with any element of their appearance should not factor into their aptitude and should not impact their prospects at work. However should time off for surgery which is not medically necessary be treated as a genuine illness?

Statutory sick pay

The laws on statutory sick pay (SSP) make no distinction between absences caused by accident or illness and absences caused by elective surgery. Regardless of the reason for absence, subject to meeting the basic qualifying conditions, an employee will be eligible to receive SSP from their fourth day of absence for up to a 28-week period at the prevailing rate.

This can come as a surprise to employers who, perhaps quite naturally, assume that the law would distinguish between a 'genuine' illness or injury and one caused by an elective choice. However, the distinction between the two is not always as clear cut as it may first seem. A person undergoing elective surgery may suffer complications which tip the balance of what can be considered elective absence. Furthermore, a person's reasons for having cosmetic surgery may not necessarily be a matter of vanity and may be just as essential to that person's mental wellbeing as any other procedure carried out under medical advice.

Many would argue that having an accident while skiing, playing rugby, boxing or engaging in any number of voluntary sports in which injuries are common and not infrequently serious, is akin to (and no less burdensome on an employer) electing to have cosmetic surgery and certainly that such an injury is no less unpredictable that complications suffered during elective surgery.

Prior to April 2014, SSP contributions were recoverable from HMRC if they exceeded a specified threshold. That scheme has now ended and employers must therefore meet the bill for SSP payments in full.

Company sick pay

Perhaps surprisingly, there is no legal right to receive any form of sick pay other than SSP from your employer. Nonetheless, a large portion of employers offer some form of contractual, enhanced sick pay.

Unlike SSP, where an employer offers enhanced sick pay (i.e. a payment on top of SSP entitlement), they may determine the terms on which it is offered. A sickness absence policy could exclude receipt of enhanced pay for elective surgery, or even for sporting injuries. However, such exclusions would need to be very carefully drafted in order to avoid disputes. It may be that the variety of circumstances in which employees have elective surgery makes it impossible to accurately define a workable exclusion.

It may be that an enhanced but restricted sick pay term in the employment contact is challengeable on the grounds of indirect discrimination, be that sex, age or potentially, even disability. Any such term should therefore be exercised with caution and each case considered on its own facts.

In addition, when considering any such restrictions employers should look at their policy in the wider context of staff wellbeing. For example, most would view engaging in sports as a positive activity, which, nothing withstanding an enhanced risk of short-term injury, has established long-term health benefits.

Giving employees a valuable contractual right to enhanced sick pay can severely restrict an employer's room for manoeuvre. Employers may therefore consider a purely discretionary policy where they retain the discretion to pay the enhancement depending on the circumstances.

Recommendations

Employers should be clear about their sick pay provision both in general and when it comes to employee absence due to elective surgery or high risk activities. It is always worth having a sickness absence policy in place to make the position on payment during sick leave clear and to set out eligibility and notification requirements. A policy is most important if an employer is offering enhanced sick pay as it is important to be clear about eligibility for payment and the circumstances in which payment pay be withheld. Even if an employer pays statutory sick pay only a clear policy is recommended.